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September 18, 2002


The opinion of the court was delivered by: John T. Curtin, District Judge


Daniel and Barbara Glanowski, Richard and Judith Zygmunt, and Diane Courter ("plaintiffs") are adoptive parents who have "adopted children privately rather than through an agency of the State of New York or a County." Item 1, ¶ 26. They claim they have adopted "children with `special needs' as the term special needs is defined in the Adoption Assistance and Child Welfare Act, 42 U.S.C. § 620, et. seq., in particular, 42 U.S.C. § 673." Id., ¶ 3. On May 2, 2000, plaintiffs filed suit against the New York State Department of Family Assistance ("DFA") and John A. Johnson, as Commissioner of the New York State Office of Children and Family Services ("State defendants" or "State"). Id. By way of this lawsuit, plaintiffs challenge the DFA policy that "adoptions involving children placed privately are not eligible for assistance under the Adoption Assistance Program 42 U.S.C. § 673." Id., ¶ 20.*fn1 Plaintiffs' lawsuit is cast as a class action, where members of the class are "those individuals who have privately adopted special needs children in the State of New York." Id., ¶ 21.

Plaintiffs have asserted five causes of action. The first cause of action alleges that the New York State policy conflicts with the stated purpose of the Adoption Assistance Program; and to the extent that § 451(1) of the Social Services Law ("SSL") results in denial of benefits to privately adopted special needs children, it is without effect pursuant to the Supremacy Clause of the United States Constitution. Id., ¶ 35. Plaintiffs also allege that the State defendants' failure to comply with the Adoption Assistance Program deprives class members of rights, privileges, and immunities secured by the Constitution, in violation of 42 U.S.C. § 1983. Plaintiffs thus seek a declaratory judgment that the State defendants' denial of adoption subsidy benefits to privately adopted children with special needs conflicts with federal law and is unconstitutional. Id., ¶¶ 37, 38.

Presently before the court are cross-motions for summary judgment. The State defendants filed their motion on December 15, 2000, Item 24; and on June 11, 2001, plaintiffs filed a cross-motion for summary judgment and to certify the class. Item 35.

For the reasons that follow, the State defendants' motion for summary judgment is granted, and plaintiffs' cross-motion for summary judgment and for class certification is denied.


I. The Named Plaintiffs

A. The Glanowskis

Daniel and Barbara*fn2 Glanowski have adopted "7 children with special needs:" Gabrielle (DOB 11/28/93) "has Down Syndrome, Seizer disorder and Microcephaly." Halee (DOB 6/1/94) "has Down Syndrome." Rebekah (DOB 5/31/95) "has Down Syndrome, diabetes, a heart defect and Celiac disease." Emma (DOB 8/21/99) "has Down Syndrome and a heart defect." Davin (DOB 12/24/95) "had serious VCFS syndrome and is now deceased." Although Davin was adopted through an agency, the Glanowskis were "never able to fully process [their] application for subsidy benefits." Kamryn (DOB 3/26/01) "has VCFS syndrome and a severe heart defect." They have also adopted Anastasia. The Glanowskis receive SSI benefits for Gabrielle, Halee, Rebekah, and Emma. An SSI application is pending for Kamryn, and Anastasia is not SSI eligible. Item 35, Glanowski Aff., ¶ 3.

The Glanowskis assert: "We have not applied for adoption subsidy benefits for all our children. This is because we were repeatedly informed that since our children were adopted privately, we would not be entitled to benefits despite their SSI eligibility." Id.,¶ 4. Richard Rio at the DFA told them that because their children were privately adopted, "they would be no more eligible for benefits than if we adopted children from Russia." Id., ¶ 5. They also assert that on several occasions, they requested applications for adoption subsidies. However, New York State refused to provide them, stating that their children were not eligible because they had been adopted privately. Id., ¶ 6. As exhibits to their affidavit, they provided two letters they had written to the then-New York State Department of Social Services*fn3 in March and September 1999 inquiring about subsidies under the Title IV-E adoption assistance program, and urging that the position taken by New York State denying such assistance to people who adopt privately was incorrect. Item 35, Ex. B. The Glanowskis also provided a letter from the Assistant Director of the New York State Adoption Service, dated November 10, 1999, which set forth the State's position that "[a]n adoption involving children placed privately is not Title IV-E eligible because the child is not a child with special needs as defined in section 473(c)*fn4 of the Social Security Act. In addition, the child does not satisfy the State's definition of a child set forth in section 451(1) of Social Services Law." Id., Ex. C.

B. The Zygmunts

Richard and Judith Zygmunt assert that they have adopted three children with "special needs:" Ryan (DOB 10/24/79) "has Down's Syndrome and vision problems;" Kaylee (DOB 3/17/89) "has Down's Syndrome, Malacia and respiratory problems;" and Noah (DOB 4/1/90) "has vision problems, has asthmatic bronchitis and speech difficulties." Item 35, Zugmunt Aff., ¶ 3. Ryan, now over 21 years old, receives SSI benefits directly. Kaylee received SSI benefits before adoption, but the Zygmunts were denied further SSI benefits after adoption based on the level of their "unearned income." They claim that Kaylee was "SSI eligible at the time of adoption." They were also denied further SSI benefits after adopting Noah based on their income level and assert that Noah, too, was SSI eligible at the time of adoption. Id.

The Zygmunts explain that they had not formerly applied for adoption subsidies for their adopted children because they were informed that privately adopted children were not eligible. They state that their "main concern was to bring our children home with us as soon as possible regardless of the availability of benefits." Id., ¶ 5.

C. Diane Courter

Diane Courter adopted four children with "special needs." Joshua (DOB 10/5/79) was born with Down Syndrome and a heart defect known as Tetralogy of Fallot. Joshua died in 1981 due to complications following open heart surgery. Eric (DOB 3/6/82) was born with Down Syndrome and a heart defect known as AV Canal. Eric died in 1985, also due to complications following open heart surgery. Caitlin (DOB 7/2/84) was born with Down Syndrome and developed Cerebral Palsy after suffering a stroke and other birth trauma-related complications. Caitlin is wheelchair bound, is unable to talk, and uses an electronic speech device. She requires complete care for all of her needs. Erin (DOB 7/19/89) has Down Syndrome and required open heart surgery in September 1990. She is mentally retarded and has learning and speech difficulties. Ms. Courter receives SSI benefits for Caitlin and Erin, and received SSI benefits for Joshua and Eric. Item 35, Courter Aff., ¶ 3.

Ms. Courter asserts that she had been informed by home study investigators and others that adoption subsidy is not available to children adopted privately, which is why she did not apply for benefits. Id., ¶ 4.

II. The Federal Statute

The Adoption Assistance Program, 42 U.S.C. § 673 (or SSA § 473), is a cooperatively run federal-state program through which the federal government provides participating states with funding to advance the adoption of special needs children. The program requires that states with plans approved under the federal act "shall enter into adoption assistance agreements . . . with the adoptive parents of children with special needs." 42 U.S.C. § 673(a)(1)(A). Section 673 lists several requirements a child must meet to be eligible for adoption assistance, only one of which is at issue in this case, i.e., that "the child has been determined by the state, pursuant to subsection (c) of this section, to be a child with special needs." 42 U.S.C. § 673(a)(2).

The statute defines a child with special needs as follows:

[A] child shall not be considered a child with special needs unless —
(1) the State has determined that the child cannot or should not be returned to the home of his parents; and
(2) the State had first determined (A) that there exists with respect to the child a specific factor or condition (such as his ethnic background, age, or membership in a minority or sibling group, or the presence of factors such as medical conditions or physical, mental, or emotional handicaps) because of which it is reasonable to conclude that such child cannot be placed with adoptive parents without providing adoption assistance under this section . . . and (B) that, except where it would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster ...

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