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July 27, 2004.


The opinion of the court was delivered by: GEORGE DANIELS, District Judge


Parents and their children sued New York City as well as officers and employees of the New York City Administration for Children's Services ("ACS"), alleging that ACS's removal of their children from their custody violated their rights and their children's rights under the Fourth and Fourteenth Amendments and under New York State law.*fn1 Defendants move to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendants motion is denied except to the extent that plaintiff's complaint can be read to allege a substantive due process claim under the Fourteenth Amendment. That claim is dismissed.

I. Background

  Plaintiffs Kevin and Sophie Hollenbeck, individually and on behalf of their children, bring suit challenging the removal of their children from their custody.*fn2 On September 14, 1999, ACS removed the children from the Hollenbeck's custody after allegations of child abuse and neglect were made against their father, Kevin Hollenbeck. The incident which sparked the removal process began on September 13, 1999, when Kevin Hollenbeck brought his son, infant plaintiff T. Hollenbeck, to the dentist for a dislodged tooth. The Hollenbecks allege that the tooth became dislodged when the son "threw himself down, landing on top of" his brother. Amended Complaint at 4, ¶ 24. The dentist who treated the son suspected abuse and contacted the New York State Central Register of Abuse and Maltreatment ("Central Register"). The Central Register, in turn, notified ACS, who initiated an investigation.

  The Hollenbecks allege that on September 14, 1999, an ACS supervisor visited the Hollenbeck home, interviewed the family members and determined that the son's injury was caused by an accident. Plaintiffs claim that the supervisor then left their home, only to return later in the day to remove the children. Plaintiffs allege that the supervisor, after conducting his initial investigation, returned to ACS only to be ordered to remove the children from their parents' custody. Plaintiffs argue that by removing the children without a court order, ACS violated their constitutional rights.

  ACS claims that the incident involving the son was not the first time they had cause to visit the Hollenbeck home. In their initial complaint, plaintiffs allege that a fight occurred on May 9, 1999 between Kevin Hollenbeck and his older son who is not a plaintiff in this action. That older son informed a school counselor who reported the incident to the Central Register. ACS was soon notified and they commenced proceedings against Kevin Hollenbeck in Family Court on July 1, 1999, alleging that he had neglected all of his children.*fn3 ACS and Kevin Hollenbeck eventually entered into a written stipulation of facts that outlined the May 9, 1999 incident. Specifically, the stipulation described the events leading up to the fight, discussed the older son's actions and concluded with Kevin Hollenbeck admitting to striking his son in the face and kicking him in the groin. The stipulation further outlined the older son's physical condition after the fight and concluded that he "did not suffer an impairment of his physical, mental or emotional condition as a result of the incident." In the Matter of the Hollenbeck Children, N-7316/99, (N.Y. Fam. Ct., May 12, 2000), Reply Declaration of Assistant Corporation Counsel Donald C. Sullivan, Exhibit D, p. 2. The Family Court, while accepting the stipulation, rejected this final conclusion, finding that "[t]he conclusory statement [discussing the older son's condition] is belied by the preceding sentence" which stated that he "had a mark on his cheek which was reddish in color, some swelling and some impression of teeth marks on the inside of the child's cheek." Id. The Family Court found that Kevin Hollenbeck "unreasonably inflicted excessive corporal punishment on the child" and entered a finding of neglect. Id. at 4. The Family Court, however, suspended judgment "given the fact that ACS has withdrawn the petition against respondent mother, the representation by all counsel that the respondent father has fully complied with ACS supervision since the inception of the case, and on the agreement of all the parties. . . ." Plaintiff appealed these findings.*fn4 The children were not removed from the Hollenbeck home, however, until September 14, 1999, after the second reported incident.

  On September 16, 1999, ACS added Sophie Hollenbeck to the complaint and commenced child abuse and neglect proceedings against both parents in Family Court. Plaintiffs claim that ACS maliciously filed these false charges "for the purpose of attempting to ratify their prior unconstitutional removal and detention of infant plaintiffs." Id. at 6, ¶¶ 38-39. On September 17, 1999, plaintiffs filed a written demand in Family Court for the return of their children. The Court held hearings on September 17, 21, 29, 1999 as well as October 4, 1999. On September 17, 1999, the Family Court ordered infant plaintiff C. Hollenbeck returned to the custody of Sophie Hollenbeck. The Family Court further ordered Kevin Hollenbeck to leave his home pending further investigation by the Court. On September 21, 1999, the Family Court ordered the return of the remaining Hollenbeck children to Sophie. The Family Court again ordered that Kevin Hollenbeck remain away from the Hollenbeck home. On October 4, 1999, the Family Court allowed Kevin Hollenbeck to return home. Id. at 6, ¶ 44. Plaintiffs have had custody of their children since October 4, 1999. On April 24, 2000, ACS withdrew all charges against Sophie Hollenbeck as well as all charges against Kevin Hollenbeck stemming from the September 13, 1999 incident.

  Plaintiffs allege eight causes of action. In their first cause of action, plaintiffs allege that the removal and detention of infant plaintiffs was "without probable cause and without due process," in violation of the parents' Fourth and Fourteenth Amendment rights. Plaintiffs next allege that the removal of the infant plaintiffs was "without probable cause and based upon a constitutionally inadequate investigations of child abuse and neglect charges" in violation of all of the plaintiffs' Fourth and Fourteenth Amendment rights. Plaintiffs' third cause of action alleges that the defendants' policy of "removing and detaining children from their parents without probable cause, without due process of law, and based upon constitutionally inadequate investigations of child abuse and neglect charges" violated the children's interest in "being free of unlawful seizures" in violation of the Fourth and Fourteenth Amendments. Plaintiffs also allege that the defendants maliciously filed child protective proceedings against them in violation of the Fourth and Fourteenth Amendments.*fn5 Plaintiffs further allege violations of New York State Law, specifically charging malicious prosecution, unlawful interference with the parents' custody rights, unlawful imprisonment of the children and breach of duty of care.

  Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that plaintiffs' claims are barred under the Rooker-Feldman and Younger abstention doctrines and that plaintiffs cannot prevail on their due process claims. Defendants also allege that all claims against the individual defendants should be dismissed under the doctrine of qualified immunity. Lastly, defendants request that plaintiffs' counsel be disqualified from representing both the parents and the Hollenbeck children, arguing that such representation creates an inherent conflict of interest.

  II. Discussion

  Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint where the complaint "fail[s] . . . to state a claim upon which relief can be granted[.]" FED. R. CIV. P. 12(b)(6). In reviewing a motion to dismiss, this Court accepts the allegations in the complaint as true and draws all reasonable inferences in favor of the non-moving party. See Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir. 2002). Here, a motion to dismiss will only be granted if the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992). A court may look at the complaint and any documents attached to, or incorporated by reference in, the complaint. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999).

  A. The Rooker-Feldman Doctrine

  Defendants contend that plaintiffs' claims must be dismissed under the Rooker-Feldman doctrine because they are based on determinations and findings previously adjudicated in the Family Court. Plaintiffs dispute this argument, asserting that they "do not seek to overturn an order of the Family Court." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss and for Summary Judgment ("Plaintiffs' Brief") at 8. Plaintiffs assert that the issues that [they] present here are the issues upon which plaintiffs prevailed in the Family Court: 1) the legality of the removal of the six infant plaintiffs from the custody of their parents; and 2) the legality of defendants' commencing and continuing child abuse charges against Kevin Hollenbeck and Sophie Hollenbeck.

 Plaintiffs' Brief at 9. During oral argument, plaintiffs' counsel stated that the "basis of the complaint is that children were removed without probable cause and without due process of law and were separated from both of their parents from September 14 until October 4. And secondly, that Ms. Hollenbeck was prosecuted maliciously in violation [of] ...

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