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April 8, 2003


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


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).


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 ...

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