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July 10, 2004.

LISETTE VELEZ, on behalf of herself and her minor children JOHN VELEZ and STEVEN PAGAN, Plaintiffs,

The opinion of the court was delivered by: JOHN KOELTL, District Judge


This is a civil rights action brought pursuant to 42 U.S.C. § 1983 and arising out of the prosecution of Lisette Velez ("Velez" or "the plaintiff") for neglect and the removal and retention of her children, John Velez and Stephen Pagan, by the New York City Administration for Children's Services ("ACS"). The plaintiff alleges primarily that ACS removed her children pursuant to an alleged unconstitutional practice and policy of prosecuting battered mothers for neglect solely because they were victims of domestic violence.

The plaintiff, on behalf of herself and her minor children, asserts claims for violations of the Fourth, Ninth, Thirteenth, Fourteenth, and Nineteenth Amendments against: the City of the New York ("the City"); ACS caseworkers Evelyn Ortiz and Kathia Brown in their individual and official capacities; and ACS Commissioner William C. Bell and former Commissioner Nicholas Scoppetta in their individual and official capacities (collectively, "the City defendants"). In addition, the plaintiff asserts constitutional claims, along with state law claims of intentional infliction of emotional distress and negligence, against the City Development Support Corporation ("CDSC") — an ACS contract agency assigned to the plaintiff's case — and CDSC's employee, social worker Marilyn Reynolds (collectively, the "CDSC defendants").

  The City defendants have now moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 dismissing the claims against them on multiple grounds. The City defendants argue that the Court lacks subject matter jurisdiction over the constitutional claims under the Rooker-Feldman doctrine, that certain claims are barred by the statute of limitations, and that the plaintiffs cannot show that any City practice, policy, or custom caused the alleged violations. The City asserts qualified immunity with respect to the claims against Ortiz and Brown in their individual capacities, and it argues that that there is no basis for finding that any of the individual City defendants were personally involved in depriving the plaintiffs of any rights. The CDSC defendants similarly move for summary judgment dismissing claims against them. I.

  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998).


  The following facts are undisputed unless otherwise noted.

  On September 17, 1998, pursuant to the New York Family Court Act § 1024, ACS removed the plaintiff's children, John Velez and Steven Pagan, from school after learning that the plaintiff had been assaulted the previous night by Steven Pagan, Sr. ("Pagan"), the father of one of her children. (See Am. Compl. ¶ 13, attached as Ex. A to Decl. of Kimberly Conway ("Conway Decl."), dated Oct. 17, 2003; City Defs.' Local Civil Rule 56.1 Statement of Undisputed Facts ("City Defs. 56.1 Stmt.") ¶ 1.) On September 18, 1998, ACS caseworker Evelyn Ortiz filed with the Bronx Family Court petitions for each child alleging neglect by the plaintiff and Pagan. (See City Defs. 56.1 Stmt. ¶ 2; Conway Decl. Ex. E (Petitions).)

  The petitions explained that ACS had received three reports from a source of "ongoing domestic violence between [the plaintiff and Pagan] that occurs in the presence of the children." (See Conway Decl. Ex. E.) The source alleged that the domestic violence was inhibiting John's education and also alleged drug and alcohol abuse by the plaintiff. (See id.; City Defs. 56.1 Stmt. ¶ 3.) Although not explicitly stated in the petitions, the reports were that the plaintiff was being abused by Pagan. (See generally Pl.'s Local Rule 56.1 Statement of Material Facts ("Pl. 56.1 Stmt.") ¶¶ 1-2, 28, 39-42; Decl. of Scott A. Bursor ("Bursor Decl."), dated Oct. 30, 2003, Ex. 10 (State Central Registry ("SCR") Summary Report).) Ortiz had been assigned to the case since the first report on November 19, 1997; she had visited Velez's family multiple times and had provided referrals for domestic violence counseling and drug screening. (See Pl. 56.1 Stmt. ¶¶ 4, 50-51.) The same day that the petitions were filed, September 18, 1998, the Bronx Family Court held a preliminary hearing pursuant to Family Court Act § 1027. (See City Defs. 56.1 Stmt. ¶ 4. See generally Tr. of Sept. 18, 1998 Hearing ("Sept. 1998 Tr."), attached as Bursor Decl. Ex. 14.) The plaintiff was present and represented by counsel, but the plaintiff disputes that she received any legal advice from her court-appointed counsel, Karen Steinberg. (See id.; Decl. of Lissette Velez ("Velez Decl."), dated Oct. 20, 2003, ¶¶ 2-3.) Legal Aid counsel represented the children until the court appointed Norton Pinzer as legal guardian for the children. (See City Defs. 56.1 Stmt. ¶ 4.) At the conclusion of the hearing, with the plaintiff's consent expressed by her attorney, the court ordered the children removed and remanded to ACS custody pending further proceedings. (See id. ¶ 5; Conway Decl. Ex. G (Orders).)

  On November 30, 1998, the family court held a fact-finding and dispositional hearing pursuant to Family Court Act § 1047. (See City Defs. 56.1 Stmt. ¶ 10; Tr. of Nov. 30, 1998 Hearing ("Nov. 1998 Tr."), attached as Bursor Decl. Ex. 17.) The plaintiff was not present and claims she was not notified of the hearing. (See Velez Decl. ¶ 5.) A court-appointed attorney named Sara Somers appeared on the plaintiff's behalf, but the plaintiff claims that she never met with Somers or authorized her representation. (See id. ¶ 6.) Somers requested an adjournment so that her client could be present, but the request was denied, and Somers thereafter did not participate in the proceedings. (See Nov. 1998 Tr. at 3-4, 12.) Ortiz was called as the sole witness, and she repeated the allegations of domestic violence in the home, educational neglect, and drug and alcohol abuse. (See id. at 4-9.) Ortiz was not cross-examined; Pinzer, appearing on behalf of the children, asked no questions and joined in ACS's application. (See id. at 9-10; City Defs. 56.1 Stmt. ¶ 11.) Based on Ortiz's testimony, the court ordered the children removed from the plaintiff's custody and placed with ACS to reside with their respective paternal grandmothers for a period of twelve months; the orders also required the plaintiff and Pagan to complete drug, parental skills, and domestic violence programs. (See City Defs. 56.1 Stmt. ¶¶ 13-15; Conway Decl. Ex. J (Orders of fact-finding and disposition).)

  After the children's initial removal, ACS made arrangements with CDSC, a foster care agency under contract with ACS, to provide services to the plaintiff. (City Defs. 56.1 Stmt. ¶ 6.) As of December 2000, Marilyn Reynolds was the CDSC social worker assigned to the case. (See Am. Compl. ¶ 17; Tr. of Dep. of Marilyn Reynolds ("Reynolds Dep."), dated July 28, 2003, at 17, attached as Bursor Decl. Ex. 8.) Beginning in October 1998, CDSC arranged a plan with the plaintiff whereby she would enroll in a parenting skills program, domestic violence counseling, and a drug rehabilitation program. (See City Defs. 56.1 Stmt. ¶ 7; CDSC Mot. Ex. O (service contracts between CDSC and Velez, dated Oct. 15, 1998 and Feb. 15, 2000).)

  On November 30, 1999, the family court order remanding the plaintiff's children to ACS custody for twelve months lapsed. (City Defs. 56.1 Stmt. ¶ 17.) The plaintiff claims that she was not notified of this fact, and she did not seek the return of her children at that time. (See Velez Decl. ¶ 14; City Defs. 56.1 Stmt. ¶ 18.) Ortiz had no involvement in the case after the dispositional hearing the previous year, and at some point the case was reassigned to ACS caseworker Kathia Brown, who began working at ACS in January 2000. (City Defs. 56.1 Stmt. ¶¶ 16, 19.) Shortly before August 2000, Brown learned that the placements had lapsed, and on August 2, 2000 she filed neglect petitions in the Bronx Family Court to extend the children's placement. (See id. ¶ 21; Pl. 56.1 Stmt ¶¶ 153-54; Conway Decl. Ex. K (Petitions).) The petitions included a "rider" reciting the prior finding of neglect against the plaintiff and asserting that the plaintiff had not complied with the required service programs. (See Conway Decl. Ex. K; City Defs. 56.1 Stmt. ¶ 22.) The plaintiff disputes the bases for the petitions and notes that Brown never spoke with Velez, her children, or Ortiz before filing the petitions. (See Pl. 56.1 Stmt. ¶¶ 155-62, 209-10; Tr. of Dep. of Kathia Brown ("Brown Dep."), dated July 24, 2003, at 53-71, attached as Bursor Decl. Ex. 6.)

  From September 2000 through February 2001, the Bronx Family Court held hearings in which a decision on the extension of placement was adjourned and the neglect petitions were converted into petitions for an extension of placement. (See City Defs. 56.1 Stmt. ¶¶ 24-26.) During those hearings, the plaintiff was present and represented by a court-appointed attorney, Robert A. Leder, but the plaintiff denies that she had meaningful contact with Leder. (See id.; Velez Decl. ¶¶ 11-12.) On April 4, 2001, pursuant to Family Court Act § 1055, the family court held an extension of placement and permanency hearing, at which the plaintiff and Leder were present. (See City Defs. 56.1 Stmt. ¶ 27.) According to the plaintiff, the hearing lasted less than five minutes and no witnesses were examined. (See Velez Decl. ¶ 13.)*fn1 The court issued orders extending the children's placement for an additional twelve months "on consent," although the plaintiff denies giving consent or authorizing her counsel to do so. (See Conway Decl. Ex. L (Orders); Velez Decl. ¶ 15.) The orders provided further for the trial discharge of the children to the plaintiff after she completed domestic violence and drug counseling programs, and they instructed ACS to file a petition for the next permanency hearing no later than sixty days before April 4, 2002. (See City Defs. 56.1 Stmt. ¶ 30; Conway Decl. Ex. L (Orders).)

  After that hearing the plaintiff continued to work toward completing the programs so that she could be reunited with her children. On December 5, 2001, ACS filed petitions for an extension of placement and permanency hearing indicating that the permanency plan was to return the children to their mother but that an extension was needed for the mother to find adequate housing. (See City Defs. 56.1 Stmt. ¶ 31; Conway Decl. Ex. M (Petition at 2, 9, 12).) Around January 2002, the plaintiff secured housing, and on February 28, 2002, ACS held a conference that led to the children being discharged to the plaintiff's custody on a trial basis in March 2002. (See City Defs. 56.1 Stmt. ¶¶ 32-33; Bursor Decl. Ex. 24 (CDSC Progress Note Narrative, dated Jan. 18, 2002, indicating that Velez had completed her goals and obtained housing).) On June 25, 2002, ACS held a final discharge conference, after which the plaintiff regained full and unrestricted custody of her children. (See City Defs. 56.1 Stmt. ¶ 34; Pl. 56.1 Stmt. ¶ 200.) The original complaint in this action was filed on October 18, 2002. (City Defs. 56.1 Stmt. ¶ 35.) III.

  The plaintiff has brought this action pursuant to 42 U.S.C. § 1983, alleging that the removal of her children and subsequent actions by ACS and CDSC violated her and her children's constitutional rights. In particular, the plaintiff claims that ACS removed her children pursuant to an alleged policy of prosecuting abused mothers for neglect solely because they were victims of domestic violence. (Am. Compl. ¶ 1.) This alleged policy, the plaintiff asserts, was recently recognized and found unconstitutional in In re Nicholson, 181 F. Supp.2d 182 (E.D.N.Y. 2002), and Nicholson v. Williams, 203 F. Supp.2d 153 (E.D.N.Y. 2002) (collectively, "Nicholson").*fn2 (Am. Compl. ¶ 1.) The Amended Complaint now contains three counts. Count I names all defendants and states § 1983 claims for the violation of rights under the Fourth, Ninth, Thirteenth, Fourteenth, and Nineteenth Amendments. (Am. Compl. ¶¶ 28-31); see Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) ("To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." (internal quotation omitted)). Counts II and III are state law claims against the CDSC defendants for intentional infliction of emotional distress and negligence, respectively. (Am. Compl. ¶¶ 32-43.)

  With respect to the constitutional claims generally, parents "have a constitutionally protected liberty interest in the care, custody and management of their children," and family members have a fundamental right under the Fourteenth Amendment to remain together. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999); see also Nicholson, 203 F. Supp.2d at 233-37. Thus, while "the State has a profound interest in the welfare of the child," interference with family integrity must comport with procedural and substantive due process, as well as rights under the Equal Protection Clause and Fourth Amendment, among other provisions. Tenenbaum, 193 F.3d at 593-94; see also Phifer v. City of New York, 289 F.3d 49, 57-62 (2d Cir. 2002); Kia P. v. McIntyre, 235 F.3d 749, 757-63 (2d Cir. 2000); Nicholson, 203 F. Supp.2d at 236-49; People United for Children v. City of New York, 108 F. Supp.2d 275, 292-300 (S.D.N.Y. 2000). Procedural due process generally requires a hearing prior to depriving a parent of custody or a prompt post-deprivation hearing if the child is removed under emergency circumstances. See, e.g., Kia P., 235 F.3d at 760 & n. 4; Tenenbaum, 193 F.3d at 593. Substantive due process protects individuals from arbitrary government intrusions by requiring a reasonable basis or justification for such actions. See, e.g., Kia P., 235 F.3d at 758-59; People United for Children, 108 F. Supp.2d at 292-93.

  Specifically, the plaintiff presents constitutional claims in connection with four events or actions by ACS:*fn3

  First, the plaintiff asserts that the initial seizure of her children on September 17, 1998 without prior judicial authorization violated her and her children's procedural due process rights and violated her children's Fourth Amendment rights. The Court of Appeals in Tenenbaum found that the seizure of a child without prior court authorization is permitted only in "exigent circumstances" where the danger to the child's health or safety is so imminent that there is not sufficient time to seek judicial authorization. See Tenenbaum, 193 F.3d at 604-05 (discussing child's Fourth Amendment rights and equating analysis to inquiry for procedural due process); id. at 594-95 (discussing procedural due process rights of child and parents); see also Gottlieb v. County of Orange, 84 F.3d 511, 520 (2d Cir. 1996) (stating that child may be removed without hearing "where there is an objectively reasonable basis for believing that a threat to the child's health or safety is imminent"). These claims thus depend on whether the initial seizure without a court order was justified by such an exigency.

  Second, the plaintiff alleges that ACS filed neglect charges against her and removed her children solely because she was a victim of domestic violence. Citing Nicholson, the plaintiff contends that ACS subjected her to a policy that "treats [abused mothers] unequally from other parents who are not abused" and violated her and her children's rights to equal protection under the Fourth, Ninth, Thirteenth, and Nineteenth Amendments. Nicholson, 203 F. Supp.2d at 248. The plaintiff also alleges that ACS filed the petitions because of a bias toward unnecessary removals. Cf. People United for Children, 108 F. Supp.2d at 280, 292-300 (involving claims that ACS policy of resolving ambiguities in favor of removal violated First, Fourth, Ninth, Thirteenth, and Fourteenth Amendment-substantive and procedural due process and equal protection). With respect to the initial prosecution, the plaintiff also claims that Ortiz violated the plaintiff's due process rights by making allegedly false statements in neglect petitions and at the November 30, 1998 hearing. In particular, the plaintiff claims that Ortiz repeated allegations about alcohol and drug use by the plaintiff that Ortiz allegedly knew were false.

  Third, the plaintiff asserts claims arising out of ACS's retention of the children from November 30, 1999 through April 4, 2001 after the initial twelve-month placement had lapsed. The plaintiff argues that ACS and CDSC, by retaining her children without legal authority or a reasonable basis, violated her children's Fourth Amendment rights and her and her children's substantive due process rights. The plaintiff also asserts procedural due process claims based on the alleged failure to provide a prompt hearing after the placement lapsed.

  Fourth, the plaintiff claims that ACS re-applied policies that are allegedly biased against abused mothers and in favor of unnecessary removals when, on August 2, 2000, caseworker Brown filed additional neglect petitions that led to the April 4, 2001 extension of placement by the family court. The plaintiff also alleges that Brown filed the ...

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