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JOHNSON v. CITY OF NEW YORK

United States District Court, Southern District of New York


April 8, 2003

REBECCA JOHNSON AND ANNETTA JOHNSON, AS GUARDIAN OF WILLIE BEST AND VERSANTE COLE, PLAINTIFFS,
v.
THE CITY OF NEW YORK, ADMINISTRATION FOR CHILDREN'S SERVICES; NICHOLAS SCOPPETTA, AS COMMISSIONER OF ADMINISTRATION FOR CHILDREN'S SERVICES; MORRIS HENNING; RUBY CUNNINGHAM, DEFENDANTS.

The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge

OPINION AND ORDER

Plaintiffs bring this action under 42 U.S.C. § 1983 and 1988 and provisions of the New York State Constitution*fn1 alleging that they suffered violations of their constitutional rights to due process when the New York City Administration for Children's Services ("ACS") removed Versante Cole and Willie Best, who are Rebecca Johnson's grandchildren, from "kinship" foster care in Rebecca Johnson's home and delayed placement of the children with another relation. Plaintiffs also assert claims for breach of contract and negligence.*fn2

Defendants move for summary judgment seeking an order dismissing Plaintiffs' Third Amended Complaint in its entirety. Plaintiffs cross-move for partial summary judgment, seeking a determination that Defendants violated Plaintiffs' due process rights in failing to provide sufficient notice and an adequate hearing in connection with the removal of the children.

For the following reasons, Defendants' motion is granted with respect to Defendants Scoppetta and Henning and to the extent that Plaintiffs' state law claims are dismissed, and is denied in all other respects. Plaintiffs' cross-motion for partial summary judgment is denied. There remain for trial material issues of fact concerning whether Plaintiffs' rights were violated in connection with the removal of the children from Rebecca Johnson's home, and, if so, whether Defendant Cunningham is entitled to qualified immunity in connection with the decision to remove the children from Rebecca Johnson's home as well as whether the City of New York violated Rebecca Johnson's due process rights by failing to provide a meaningful post-deprivation hearing.

The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331and 1343(a)(3).

FACTUAL BACKGROUND*fn3

Plaintiff Rebecca Johnson is the grandmother of Versante Cole and Willie Best. She raised Willie Best from the age of two years and Versante Cole from the age of six years. Affidavit of Rebecca Johnson, sworn to March 6, 2001 ("Johnson Aff."), at ¶ 2. She was the licensed foster parent for Willie Best beginning in May 1991 and for Versante Cole beginning in June 1992. Id. at ¶ 3. The children had lived with her for one and one-half years prior to her certification as their foster parent. Id. at ¶ 4. By order dated January 10, 1997, the New York State Family Court terminated the parental rights of Versante Cole and Willie Best's natural parents and they were committed to the custody of ACS. The order terminating the children's natural parents' rights found that Willie Best was an abandoned child within the meaning of applicable New York State law. See Family Court Order, Ex. R to Declaration of Byran Glass ("Glass Decl."), at 3-4.*fn4

Subsequent to obtaining custody of the children, Rebecca Johnson requested permission from ACS to move to Georgia. See Johnson Aff. ¶ 7. ACS granted Rebecca Johnson permission to relocate and in, 1994, she and the children moved to Georgia. Pursuant to an interstate agreement between the State of New York and the State of Georgia, the State of Georgia agreed to monitor her home. Rebecca Johnson became a licensed foster parent with the Muscogee County (Georgia) Department of Family and Children Services ("Muscogee County Social Services"), and had other foster children reside in her home along with Versante Cole and Willie Best.

Cole and Best lived with Rebecca Johnson in Georgia until October 1997, when the ACS removed the children from Ms. Johnson's home and returned the children to New York. In November 1997, the children were placed in the foster care of Rebecca Johnson's daughter, Plaintiff Annetta Johnson. Annetta Johnson adopted Versante Cole and Willie Best in June 1999. Prior to the children's removal, Rebecca Johnson had commenced proceedings to adopt the children. See Declaration of Intent to Adopt, Ex. O to Plaintiffs' Exhibits.

In November 1996, Muscogee County Social Services issued a report containing allegations of neglect and abuse in respect of Rebecca Johnson's foster care. See Georgia Department of Human Resources Child Protective Services Special Investigations ("November 1996 Report"), Ex. G to Glass Decl. The November 1996 Report concluded that there was a lack of supervision in Rebecca Johnson's home. See November 1996 Report at 11. Muscogee County Social Services also removed several other children from Rebecca Johnson's home in November of 1996 but did not remove Best and Cole. See id. The November 1996 Report contained allegations that Rebecca Johnson had allowed her adult son to remain in her home and that some of the children in her home had reported inappropriate sexual contact by her son. Id. at 3, 5, and 7. The November 1996 Report also alleged that Rebecca Johnson used corporeal punishment on the children. Id. at 2, 5, 6, 9 and 10. Rebecca Johnson asserts that the allegations of inappropriate contact by her son are unfounded and denies that she used corporeal punishment. See Johnson Aff. ¶¶ 22, 25.

In January 1997, Muscogee County Social Services officials notified the Interstate Compact Correspondent from the New York Department of Social Services that it had serious concerns about the quality of foster care in Rebecca Johnson's home and urged New York State to remove the children. See Letter, dated January 28, 1997, from Muscogee County Department of Family and Children's Services to the Interstate Compact Correspondent of the New York Department of Social Services, Ex. U to Glass Decl. The Muscogee County Social Services officials suggested a date for removal two weeks after the date of the letter. See id. The Interstate Compact Correspondent also wrote to an ACS caseworker in New York, indicating that the children should be removed absent changed circumstances. See Letter, dated June 4, 1997, from the Interstate Compact Correspondent to Mavis McDonald, Ex. V to Glass Decl.

Defendant Cunningham, Site Director of the ACS Queens Division of Adoption of Foster Care Services, asserts that, prior to October 1997, she was unaware that the Muscogee County Social Services had recommended that the children be removed from Rebecca Johnson's home, and that she was also unaware that the Interstate Compact Correspondent had recommended their removal. See Deposition of Ruby Cunningham at 13-15, Ex. C to Glass Decl. Defendant Cunningham further asserts that, prior to October 1997, she was not aware that the children were not being supervised by the State of Georgia. She states that she learned of the Georgia state officials' recommendation that the children should be removed only in October of 1997, when she received a copy of the November 1996 Report from an ACS attorney. Id. at 15. Upon receiving the report, Cunningham states, she convened a staff meeting where it was decided that the children should be removed on an emergency basis. Id. at 18, 19, 41-43.

Plaintiffs contend that Cunningham knew of the report earlier, arguing that Cunningham's assertion that she did not know about the report is not credible. Plaintiffs cite to the January 1997 letter to Cunningham's immediate subordinate, which referred to the November 1996 Report and a follow-up letter. In addition, Plaintiffs point out that, seven days prior to the removal of the children, Cunningham had requested that the State of Georgia resume supervision of Rebecca Johnson's foster care home. See Letter dated October 1, 1997 from Ruby Cunningham to Interstate Compact Correspondent, Ex. M to Plaintiff's Exhibits. Plaintiffs assert that the foregoing letter indicates that Cunningham knew that Georgia was not supervising the home prior to the removal. Plaintiffs also assert that the record reflects that ACS received positive reports concerning Rebecca Johnson's care of the children after November 1996, pointing to evidence that the ACS administrator who became involved with Ms. Johnson's case in March 1997, indicated that she had no information that the children were subject to corporal punishment and that no one "expressed any urgency" concerning Rebecca Johnson's care of the children. See Deposition of Pamela Campbell, at 26-27; 28-30.

The record also reflects that, after Georgia officials indicated in January of 1997 that Georgia was no longer willing to supervise the children and requested that they be returned to New York (Letter of Muscogee County Social Services, dated January 28, 1997), New York continued to monitor the children. ACS caseworkers spoke to the children on a monthly basis. See Deposition of Pamela Campbell at 30. In April of 1997, Rebecca Johnson and the children traveled to New York and were interviewed by an ACS caseworker, who reported that the "children seemed healthy and comfortable with their paternal grandmother." See Mavis McDonald case notes, Plaintiff's Ex. L.

An ACS administrator contacted Rebecca Johnson at about 5:00 p.m. on October 7, 1997 and advised her that ACS would remove the children the next day based on the lack of supervision by the State of Georgia and based on the November 1996 Report of neglect and abuse. On October 8, 1997, the children were removed from the home and transported to New York City.

On the date of the removal, Rebecca Johnson requested an Independent Review hearing from ACS. Also on October 8, 1997, the date of the children's removal, a previously scheduled New York State Family Court proceeding was conducted in order to determine whether the children could be adopted. See Transcript of October Hearing before Judge Larabee, dated Oct. 8, 1997, Ex. U to Plaintiffs' Exhibits. ACS representatives, (other than the named Defendants) attended the hearing, reporting the removal of the children from Rebecca Johnson's home and the reasons asserted therefor. Upon hearing the reports of the ACS representatives, the Family Court asked ACS to further investigate the allegations of abuse and adjourned the matter to the next court date. See id. The children were placed in foster care with non-relatives pending the next hearing. See Affirmation of Carol Fegan, dated November 14, 1997, Ex. J to Plaintiffs' Exhibits.

Rebecca Johnson did not attend the Family Court proceeding and there is no evidence that she was given notice of the hearing, or that she was represented there by counsel or otherwise. Defendants do not dispute Rebecca Johnson's assertions that she had no reason to expect that the Family Court hearing would be significant, that she had not been required to attend prior hearings, all of which had resulted in continuation of the children in her foster care and that she could not, in any event, have traveled to New York for the hearing on the day the children were being removed. There is no proffer of any evidence that Defendants notified Johnson that the basis for the removal would be raised at the hearing, or that any determination that would be made there might have implications for her later ability to challenge the removal.

At a subsequent hearing, held on November 19, 1997, the Family Court ordered that the children were to be placed with Annetta Johnson*fn5 by November 25, 1997, unless ACS showed a reason why the children's health and safety would not be served by such placement. See Order of Judge Larabee, dated November 19, 1997, Ex. K to Glass Decl. There is no evidence that Rebecca Johnson was notified of the November 19, 1997 Family Court hearing.

As previously noted, Rebecca Johnson had made a request for an Independent Review hearing concerning the removal on October 8, 1997. After initially notifying Ms. Johnson on October 28, 1997, that such a hearing would be scheduled for November 25, 1997, ACS conducted the Independent Review hearing on December 4, 1997. The record does not reflect why the hearing was adjourned to December 4, 1997. In a written decision dated December 24, 1997, the Independent Review Officer held that the Family Court's November 19, 1997, order deprived her of jurisdiction to conduct a review of the removal of the children from Rebecca Johnson's home, who were by that time already living with Annetta Johnson pursuant to the Family Court order. Rebecca Johnson did not seek administrative or judicial review of the Independent Review officer's determination. See Decision After Independent Review, dated Dec. 24, 1997, Ex. L to Glass Decl.

On March 13, 1998, Rebecca Johnson filed an order to show cause in the Family Court challenging ACS's removal of the children. The Family Court declined to entertain Rebecca Johnson's effort to contest in that forum the abuse and neglect allegations underlying the removal of the children from her home, denying the application on the basis that she had not exhausted her administrative remedies with respect to the Independent Review officer's decision. See Order of Judge Larabee, dated March 13, 1998, Ex. M to Glass Decl. The Family Court also denied Rebecca Johnson's request for an order directing visitation with the children and issued an order of protection directing Rebecca Johnson to refrain from contact with the children, apparently in light of representations that Ms. Johnson had been raising issues of custody directly with the children. See Order of Judge Larabee, dated March 13, 1998, Ex. M to Glass Decl. Annetta Johnson adopted the children in June 1999. See Deposition of Ruby Cunningham, at 65.

Rebecca Johnson does not seek custody of the children in this action.

Defendants, in their motion for summary judgment, seek dismissal of all of Plaintiffs' claims. They contend that, even if Rebecca Johnson had a protected liberty interest as a kinship foster parent, she was provided all the process that was due to her because the removal of the children by ACS was conducted on an emergency basis and she was provided with adequate post-deprivation remedies. Defendants further argue that summary judgment is appropriate as to the individual Defendants named in the complaint either because they are entitled to the defense of qualified immunity or because there is no showing of their personal involvement in the decision to remove the children.*fn6 In addition, Defendants argue that the City of the New York is not liable for the alleged deprivation of Rebecca Johnson's constitutional rights because Plaintiffs have identified no policy, practice or custom causing such deprivation.

Defendants also contend that Plaintiffs' state law claims should be dismissed because there is no viable federal claim and because Plaintiffs have not prosecuted their state law claims (other than the claim that ACS was negligent in delaying placement of the children with Annetta Johnson).

In Plaintiffs' cross-motion for partial summary judgment, Plaintiffs contend that Defendants violated Rebecca Johnson's rights to due process because there was no emergency requiring removal of the children without notice and that the due process provided to Rebecca Johnson was not prompt or meaningful. Plaintiffs contend that the individually named Defendants are not entitled to qualified immunity because their actions were not objectively reasonable. Plaintiffs also contend that Defendant Scoppetta is personally liable for promulgating an unconstitutional presumption that removal of foster-children is appropriate if there is an ambiguity concerning the child's safety. Plaintiffs argue that the City of New York is liable for violation of Rebecca Johnson's constitutional rights because the City of the New York has failed to enact procedures protective of the liberty interest of kinship foster families and because the City maintains an unconstitutional policy of "when in doubt — take them out."

DISCUSSION

Summary judgment is appropriate when the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the Court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Casualty Co. of Reading, Pennsylvania v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994) (citation and internal quotation marks omitted). To defeat a motion for summary judgment, a plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A plaintiff "must come forward with enough evidence to support a jury verdict in [his] favor, and the motion will not be defeated merely . . . on the basis of conjecture or surmise." Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992) (citation and internal quotation marks omitted). See also Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). The party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Liberty Interest

In claiming that either a substantive or procedural due process right has been abridged, Plaintiffs must first establish that they have a liberty interest protected by the Constitution. See Harley v. City of New York, 36 F. Supp.2d 136, 140 (E.D.N.Y.), aff'd, 208 F.3d 302 (2d Cir. 2000). The Second Circuit has held that children of custodial relatives possess a liberty interest in preserving the stability of their family and, accordingly, that they are entitled to due process protections when the government decides to remove them from the family environment. See Rivera v. Marcus, 696 F.2d 1016, 1024-25 (2d Cir. 1982).

In determining whether the kinship foster parent in that case had a protected liberty interest in the foster relationship, the Court of Appeals in Rivera examined the jurisprudence distinguishing foster parents from natural parents. Rivera, 696 F.2d at 1024 (citing Smith v. Organization of the Foster Families for Equality and Reform, 431 U.S. 816, 847 (1977) (Smith v. OFFER)). The Rivera Court found that the Supreme Court had identified three significant differences between a foster family and a natural family: there is no biological relationship between the foster parents and the children in their care; the source of the foster family relationship is contractual and circumscribed by the state in the foster care agreement, whereas the natural family has its origins apart from state law; there is a tension between the liberty interests of the natural parents and the familial rights extended to the foster parents. Id. The Court of Appeals in Rivera further found that New York courts have relied upon these factors in support of holdings that "foster parents do not possess a constitutionally protected liberty interest in the maintenance of the foster family relationship." Id. (collecting cases). Distinguishing the facts of Rivera, which involved foster care by a relative, from the cases where courts had found no liberty interest, the Rivera Court found that the three limiting factors cited in OFFER were not present. The Court of Appeals determined that Mrs. Rivera was biologically related to the children, they had lived together as family prior to the establishment of the foster agreement, and there was no potential conflict with the children's natural parents because the father had abandoned the children years before and the mother was institutionalized for mental illness. Id. Mrs. Rivera was therefore found to have a protected liberty interest in the foster relationship.

In this case, the Rivera/OFFER factors weigh in favor of finding a protected liberty interest in the foster kinship relationship among Rebecca Johnson, Versante Cole and Willie Best. Rebecca Johnson is the children's grandmother. She cared for them at a young age, and it appears that the parties expected her to maintain that relationship. In addition, the children lived with Rebecca Johnson prior to the establishment of a foster care relationship. There is no conflict with the children's natural parents, who were found to have abandoned them.*fn7

In light of these circumstances and consistent with the teachings of Rivera, the Court finds that Plaintiffs had a liberty interest in maintaining the integrity and stability of the kinship foster family. Plaintiffs, therefore, were entitled to due process protections when the State of New York decided to remove the children from Rebecca Johnson's custody. See Rivera, 696 F.2d at 1024-25; see also Harley v. City of New York, 36 F. Supp.2d at 140 (children of grandmother-foster parent entitled to due process protections).

What Process is Due

Having determined that Rebecca Johnson had a liberty interest in the integrity of her foster family, the question remains what process was due to Rebecca Johnson and the children to protect the liberty interest in the integrity of the kinship foster family. "[U]nlike some legal rules . . . due process is not a technical conception with a fixed content unrelated to time, place and circumstances [due process] expresses the requirement of `fundamental fairness'. . . [a]pplying the Due Process Clause is therefore an uncertain enterprise which must discover what `fundamental fairness' consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake." Rivera, 696 F.2d at 1026-27 (citations omitted). Fundamentally, due process requires that the aggrieved party be provided with an opportunity to be heard, ''at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

Whether the process provided is sufficient to protect an aggrieved party's liberty interest is considered in light of three factors enunciated by the Court in Mathews: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335; see also Rivera, 696 F.2d at 1027. In this inquiry, the Court keeps in mind the Supreme Court's teaching in OFFER, 431 U.S. at 855-56: "[w]e deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context restraint is appropriate on the part of courts called upon to adjudicate under the Constitution." In addition, "[o]nce a liberty interest is recognized, the focal question becomes whether the procedures used by the state adequately protect the interest implicated by the [plaintiff's] claim." Rivera, 696 F.2d at 1026 (citations omitted).

In Rivera, the Second Circuit, in applying the Mathews test, found that a kinship foster family had a substantial private interest in being protected "from state action which threatens the integrity and stability of their familial relationship." Id. at 1027. Accordingly, Plaintiffs have a substantial private interest in being protected from adverse state action. The Second Circuit found that the risk of erroneous constitutional deprivation depended upon the fairness and reliability of the existing pretermination procedures. Id. In addition, the Second Circuit found that it was not unduly burdensome for the state to provide the following procedural safeguards: (1) timely and adequate notice of the reasons for termination, (2) an opportunity to retain counsel, (3) upon request, and in the absence of exceptional circumstances, a pre-removal hearing, (4) an opportunity to confront and cross-examine witnesses, (5) an opportunity to present evidence and arguments, (6) an impartial decision maker, and (7) a written statement of the decision and a summary of the evidence in support of the decision. Id. at 1028.

Plaintiffs allege that Defendants violated their due process rights because there was no emergency justifying removal of the children without notice and hearing and because ACS failed to provide Rebecca Johnson with notice of the reasons for removal and a prompt, meaningful post-deprivation hearing. Having determined that Plaintiffs have a substantial private interest in being protected from adverse state action, the Court considers the reliability and fairness of Defendants' pretermination procedures.

Whether an Emergency Removal Was Warranted Defendants contend that the children's removal was appropriate, arguing that applicable New York State regulations provide for removal of children without notice and a hearing if ACS determines that the health or safety of a child requires immediate removal. Defendants also assert that state procedures provide for post-deprivation process that sufficiently protected Plaintiffs' due process rights.

The New York State regulations concerning foster care set forth the normal procedure for removing children from a foster care situation. Section 443.5 of the N.Y.C.R.R. carves out emergency removals from the requirements of pre-removal notice and opportunity to be heard, providing that: "[s]uch notification shall be given at least 10 days prior to the proposed effective date of the removal, except where the health or safety of the child requires that the child be removed immediately from the foster family home." N.Y.C.R.R. § 443.5.*fn8

"[I]t was, and remains . . . well established that officials may temporarily deprive a parent of custody in `emergency' circumstances `without parental consent or a prior court order.'" Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (quoting Duchesne v. Sugarman, 566 F.2d 817, 826 (2d Cir. 1977)) (other citations omitted). In the context of a parent/child relationship, where courts have clearly recognized a liberty interest, if government officials believe that a threat to a child's health or safety is imminent, the constitution does not prevent those officials from removing a child from his or her parent's custody without a prior hearing. See Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). In the Second Circuit, "emergency circumstances mean circumstances in which the child is immediately threatened with harm, . . . for example, where there exists an `immediate threat to the safety of the child,' . . . or where the child is left bereft of care and supervision, . . . or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence. . . ." Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991).

Under Rivera, Plaintiffs are entitled to due process protections of their liberty interest in the integrity of their family. The Court in Rivera, however, also recognized "the police power of the state to remove a child from a foster home prior to a hearing in cases of serious neglect, abuse or other emergency." Rivera, 696 F.2d at 1029 n. 13. Thus, cases concerning natural parent/child relations, kinship foster families and New York State regulations concerning foster families are consistent in recognizing the police power of the state to remove children prior to a hearing emergency circumstances. Moreover, the parties do not dispute the power of ACS to remove children under emergency circumstances.

In the context of the liberty interest pertaining to natural parent-child relationships, it is well settled that, to justify removal from a parent without prior judicial authorization, the government must be able to show "an objectively reasonable basis" for deciding that the child is immediately threatened with harm. See Gottlieb v. County of Orange, 84 F.3d at 518 (removal in emergency context appropriate at least pending investigation); Nicholson v. Williams, 203 F. Supp.2d 153, 237 (E.D.N.Y 2002) (requiring "objectively reasonable" grounds to justify removal) (citation omitted); cf. Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997) (requiring "objectively reasonable" grounds to justify removal in holding that the child welfare agency should have independently corroborated a report of abuse from an anonymous informant in order to separate a child and parent); Strail v. Department of Children, Youth and Families of Rhode Island, 62 F. Supp.2d 519, 529 (D.R.I. 1999) ("the due process clause will certainly be offended if children are taken away from their parents without sufficient investigation.").

In light of the Plaintiffs' liberty interest in the integrity of their kinship foster family, and the undisputed fact that no pre-removal hearing was afforded them, Defendants must establish that they had an objectively reasonable basis for deciding that an emergency existed justifying removal of the children prior to a hearing, to preclude a finding that the removal violated Plaintiffs' rights to due process. None of the parties is entitled to summary judgment on this issue. There is a material question of fact as to whether ACS representatives had an objectively reasonable basis for concluding that the children were in imminent danger of harm at the time of the children's removal from Rebecca Johnson's foster home.

The record reflects that the November 1996 Report indicated that there was a lack of supervision in Ms. Johnson's home, but the report did not specifically recommend immediate removal of the children. See November 1996 Report at 11. The January 1997 letter from the Muscogee County Social Services administrators to the Interstate Compact Correspondent of the New York State Department of Social Services reflects that Georgia officials had informed the Interstate Compact Correspondent of their concerns about the use of corporal punishment in Rebecca Johnson's home as early as September 1995, and referred to the November 1996 Report's conclusion that there was a lack of protection and supervision of the children placed in Ms. Johnson's care. See Muscogee County Department of Family and Children's Services' letter of January 28, 1997 to the Interstate Compact Correspondent of the New York State Department of Social Services at 3. When Georgia officials recommended removal of the children, they suggested a date for removal two weeks after the date of the letter. The supervisor of Rebecca Johnson's caseworker stated that, when she took over Ms. Johnson's case in March 1997, she had no information that the children had been subjected to corporal punishment. See Deposition of Pamela Campbell, at 26-27, Plaintiffs' Exhibits. She further stated that no one "expressed any urgency" to her concerning the children's situation under Ms. Johnson's care and that Georgia state officials did not request that the children be removed. See id. 28-30. In addition, after Georgia officials indicated in January of 1997 that Georgia was no longer willing to supervise the children and requested that they be returned to New York (Letter of Muscogee County Social Services, dated January 28, 1997), New York continued to monitor the children. ACS caseworkers spoke to the children on a monthly basis. See Deposition of Pamela Campbell at 30.

In April of 1997, Rebecca Johnson and the children traveled to New York and were interviewed by an ACS caseworker, who reported that the "children seemed healthy and comfortable with their paternal grandmother." See Mavis McDonald case notes, Plaintiff's Ex. L. These facts, Plaintiffs' assert, show that there was no emergency warranting removal of the children on an emergency basis. See id.

Defendant Cunningham, however, asserts in her deposition that she was not aware of prior contacts between Muscogee County Social Services representatives and ACS and that the first time that she learned that there had been a recommendation by Muscogee County Social Services to remove the children was just prior to their removal. Deposition of Ruby Cunningham at 13-15. Whether Cunningham's account of the circumstances surrounding her decision to remove the children is credible is a question for the jury to weigh.

In addition, the November 1996 Report raised concerns about Rebecca Johnson's son residing in her foster home. Plaintiffs assert that there is no evidence that he was residing in her home in 1997. The issue here is not whether there is evidence that Rebecca Johnson's son was not residing in her home in 1997 but whether, under the circumstances at the time, ACS officials had an objectively reasonable basis for concluding that the children should be removed prior to a hearing.

Although it is clear that ACS was presented over a period of time with evidence of abuse and neglect in Rebecca Johnson's foster home, there were also contacts and information indicative of good care. On this record, the Court cannot conclude as a matter of law that ACS officials either had, or lacked, a reasonably objective basis to conclude that emergency removal was warranted.*fn9

Individual Defendants' Personal Involvement Defendant Scoppetta*fn10 seeks dismissal of any claims against him in his personal capacity, arguing that Plaintiffs have failed to proffer evidence of his personal involvement in any alleged violation of their rights. Personal involvement of an official in the conduct complained of is a prerequisite to section 1983 liability. See Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Plaintiffs allege that Defendant Scoppetta was responsible for policies Plaintiffs contend resulted in ACS's practice of removing children from foster care if there was any ambiguity as to whether a foster home was unsafe. See Plaintiffs' Mem. at 46-47. Plaintiffs, however, present no evidence that there were any such policies, that Defendant Scoppetta had any personal involvement in the promulgation of such policies, or that Defendant Scoppetta played any part in ACS's decision to remove the children from Rebecca Johnson's home.

Accordingly, the Court finds that no reasonable jury could find that Defendant Scoppetta had any personal involvement in the events underlying Plaintiffs' claims and Plaintiffs' cause of action as against Defendant Scoppetta in his personal capacity is dismissed.

In addition, apart from general allegations in their motion papers that Defendant Henning, with Defendant Cunningham, made the decision to remove the children from Rebecca Johnson's home, Plaintiffs have provided no evidence as to Defendant Henning's personal involvement in the children's removal. Accordingly, there is no basis for establishing Defendant Henning's liability. Plaintiffs' claim against Defendant Henning, which appears to have been asserted against him only in an individual capacity, is also dismissed.

Qualified Immunity

Defendant Cunningham argues that she is entitled to summary judgment on the grounds of qualified immunity as to any claims against her in her personal capacity. A government employee sued in his or her individual capacity for damages arising from performance of discretionary functions is entitled to qualified immunity where, inter alia, it was objectively reasonable for the official to believe that the acts in question did not violate clearly federally protected rights. See Gottlieb v. County of Orange, 84 F.3d at 518; see also Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).

In Rivera v. Marcus, a 1982 decision,*fn11 the Second Circuit held that kinship foster parents have a liberty interest in the maintenance of the foster relationship and are entitled to due process protections when the government decides to remove children from the kinship foster family. See Rivera, 696 F.2d at 1024-25. Thus, in 1987, Plaintiffs clearly had, under the governing law of this Circuit, a protected liberty interest in the integrity of their foster family. As explained above, an issue of fact remains as to whether it was objectively reasonable for ACS officials, including Cunningham, to determine that the emergency removal of the children from Rebecca Johnson's home was warranted. That issue of fact precludes summary judgment in Defendant Cunningham's favor on qualified immunity grounds. Accordingly, the motion for summary judgment as to Defendant Cunningham is denied.

Municipal Liability

Plaintiffs have named as defendants the City of New York, ACS and former commissioner Scoppetta in his official capacity. Because Defendant Scoppetta is sued in his official capacity, Plaintiffs' claims against him in this regard are properly analyzed under a theory of municipal liability. See, e.g., Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978) ("official — capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent"). Insofar as ACS is an agency of the City of New York, Plaintiffs' claims against ACS also are properly analyzed under a theory of municipal liability.

See People United for Children, Inc. v. City of New York, et al., 108 F. Supp.2d 275,302 (E.D.N.Y. 2000) (analyzing challenge to ACS policy as a Monell claim).

In Monell, the Supreme Court held that local governments are not wholly immune from suit under section 1983. Id. at 436 U.S. at 663. Municipalities are subject to suit under section 1983 for monetary, declaratory, or injunctive relief if it is shown that the alleged unconstitutional action implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by officers of the defendant body. See, e. g., id. at 690; Tenenbaum v. Williams, 193 F.3d at 597; Gottlieb v. County of Orange, 84 F.3d at 518. The inference that such a policy existed may arise from "circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." Id. (citation omitted). The Supreme Court also held that municipalities may be held liable for "constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Monell, 436 U.S. at 690-91.

In order to state a claim for municipal liability under section 1983, Plaintiffs must establish three elements: (1) that an official policy or custom is in place; (2) that there is a causal link between Plaintiffs' alleged constitutional injury and the policy or custom; and (3) that Plaintiffs in fact suffered a constitutional injury. See Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (citations omitted).

Plaintiffs challenge an alleged ACS policy under which ACS resolves any ambiguity concerning the safety of a child in favor of removal of the child from a foster home. Plaintiffs contend that this policy of "when in doubt — take them out" with regard to the removal of children from kinship foster homes results in unconstitutional deprivations of due process.*fn12

Plaintiffs have not offered any evidence of such a policy or that the actions taken by ACS in this case were performed pursuant to such a policy. Under these circumstances, the Court finds that there is no basis for a reasonable jury to conclude that the City of New York is liable for any injuries suffered by Plaintiffs because it maintained a "when in doubt — take them out" policy that was applied in the case of the removal the children from Rebecca Johnson's home.*fn13

Plaintiffs' failure to show a connection between the alleged ACS policy of "when in doubt — take them out" and the removal of the children from Rebecca Johnson's home does not, however, end the Monell inquiry. Plaintiffs also contend that Defendants, including ACS, should have provided Rebecca Johnson with notice of the reasons for removal and a reasonably prompt and meaningful post-deprivation hearing. A question of fact remains as to whether ACS provided sufficient post-deprivation due process in light of Plaintiffs' liberty interest.

Post-Deprivation Due Process In the context of an emergency removal of a child from its biological parent's custody, the Second Circuit has held that due process requires that the government provide the parent an opportunity to be heard at a reasonably prompt time after the removal. Gottlieb, 84 F.3d at 520; see also Duchesne v. Sugarman, 566 F.2d at 828 (delay of twenty-seven months in providing biological parent opportunity to be heard violated constitutional due process); Cecere v. City of New York, 967 F.2d 826, 830 (2d Cir. 1992) (four day assertion of custody in emergency situation permissible); see also Sundbye v. Ogunleye, 3 F. Supp.2d 254, 265 (E.D.N.Y. 1998) (delay of six weeks in filing of family court petition of abuse "was not even close to `reasonably prompt.'"); Whisman v. Rhinehart, 119 F.3d 1303, 1310-11 (8th Cir. 1997) (hearing held seventeen days after an emergency removal was not sufficiently prompt to provide a post-deprivation remedy). The Court finds that a prompt post-deprivation hearing is also required when the government removes a child on an emergency basis from kinship foster parents.

In Rivera, the Second Circuit applied the Mathews test in weighing the sufficiency of the procedures provided to a kinship foster parent. See Rivera, 696 F.2d at 1027-28. The Mathews test is also relevant here. The first factor is the private interest affected by the deprivation. Mathews, 424 U.S. at 335. Even though Plaintiffs' interest in a prompt hearing to determine the appropriateness of the children's removal may be less than that of a natural parent, her interest is a strong one. Rebecca Johnson had cared for the children for a significant portion of their lives and cared for them continuously since at least 1992. Where, as here, children have been in continuous custody of a foster parent since early childhood, the Court sees no basis for distinguishing the kinship foster family's interest in a prompt hearing from that of a natural family. Cf. Rivera, 696 F.2d at 1027 ("[Plaintiffs] seek protection from state action which threatens the integrity and stability of their familial relationship. This important interest has consistently been recognized and afforded far-reaching due process protection.")

The second Mathews factor considers "the risk of an erroneous deprivation [of the private interest] through the procedures used, and probable value . . . of additional or substitute procedural safeguards." Mathews, at 335. "The risk of erroneous constitutional deprivation turns largely on the fairness and reliability of the existing pretermination procedures." Rivera, 696 F.2d at 1027.

As a threshold matter, the Court finds that, in the context of an emergency removal, the risk of an erroneous deprivation for children removed from their natural parents and for children removed from their kinship foster parents care is substantially the same. In both cases, the parent or kinship foster parent has no opportunity to explain or defend the conditions that provoked the government to remove the child in the context of an emergency. See Rivera, 696 F.2d at 1027-28 (commenting that removal procedures that provide foster parents no opportunity to explain or defend their fitness create potential for erroneous deprivation).

The record in this case raises troubling questions concerning whether ACS provided a sufficient opportunity for Rebecca Johnson to explain or defend her care of the children. On October 8, 1997, the day the children were removed from her home, Rebecca Johnson requested that ACS conduct an Independent Review of the removal decision. On that same day, a New York State Family Court proceeding was conducted before a state court judge who found, based on representations by ACS representatives as to the reasons for the removal, that removal of the children was appropriate. Although Rebecca Johnson knew that the October 8, 1997 Family Court hearing had been scheduled, there is no indication that she knew what issues were to be presented at the hearing or that the alleged basis of the children's removal would be raised at the hearing.

The Family Court's determination that the children should be placed for adoption was thus based upon representations of ACS representatives in a proceeding at which Rebecca Johnson was not present to challenge the reports of abuse and neglect. The Family Court's unchallenged findings became the basis of further adverse determinations against Rebecca Johnson.

By the time the Independent Review hearing was conducted on December 4, 1997, the presiding officer determined that, because the New York State Family Court had already made its determination concerning the placement of the children, it had no jurisdiction to hear Rebecca Johnson's claim. See Decision After Independent Review, Ex. L to Glass Decl. There is nothing in the record indicating whether ACS officials considered the impact of the Family Court proceeding on Rebecca Johnson's ability to challenge the children's removal through the Independent Review proceeding.

In light of the foregoing, the Court finds that third prong of the Monell inquiry — whether Plaintiffs suffered a constitutional injury — has been met with respect to post-deprivation process. Whether there is a relevant policy or custom, or lack thereof, and whether such policy, custom or lack thereof caused Plaintiffs' injury are questions for trial. Accordingly, Defendants' motion for summary judgment on Plaintiffs' cause of action against the City of New York is denied to the extent Plaintiffs' claims relate to post-deprivation due process.

State Law Claims

Plaintiffs have asserted claims for alleged violations of miscellaneous provisions of the New York State Constitution, negligence and breach of contract. Plaintiffs have asserted no argument and have proffered no facts in opposition to Defendants' motion for summary judgment — which sought dismissal of all of Plaintiffs' claims — concerning their contract claims or their claims under the New York State Constitution. Accordingly, Plaintiffs' claims under the New York State Constitution and their contract claim are deemed abandoned, and Defendants' motion for summary judgment in respect of those claims is granted.

Insofar as the Third Amended Complaint alleges that individual Defendants acted negligently in removing the children from Rebecca Johnson's home, Defendants are entitled to summary judgment as a matter of law because they are immune from suit on such claims. See Tenenbaum v. Williams, 193 F.3d at 606 ("New York law provides absolute immunity for state and local employees when they perform discretionary, as opposed to ministerial, functions.")

Furthermore, under New York General Municipal Law Section 50-i, negligence actions against a city may not be maintained unless a notice of claim is served upon the city within 90 days of after the claim arises and "it shall appear as an allegation in the complaint . . . that at least thirty days have elapsed since the service of such notice and that the adjustment or payment thereof has been neglected or refused." General Municipal Law § 50-i. The Third Amended Complaint, which added negligence claims against the Defendants, does not comply with the requirements of section 50-i and is therefore dismissed as against the City of New York and ACS. See Melito v. Canastota, 596 N.Y.S.2d 182 (3d Dep't 1993).

CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment is granted to the extent that Plaintiffs' claims against Defendant Scoppetta and Henning in their individual capacities are dismissed; and Plaintiffs' state law claims are dismissed. Defendants' motion for summary judgment is denied in all other respects. Plaintiffs' cross-motion for summary judgment against the City of New York is denied A scheduling order setting a date for a pretrial conference shall be entered currently with this opinion.

IT IS SO ORDERED.


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