United States District Court, S.D. New York
July 27, 2004.
R. HOLLENBECK, A. HOLLENBECK, T. HOLLENBECK, C. HOLLENBECK, O. HOLLENBECK and D. HOLLENBECK, infants, by their parents SOPHIE and KEVIN HOLLENBECK, and SOPHIE HOLLENBECK and KEVIN HOLLENBECK, individually, Plaintiffs,
MILDRED BOIVERT, ISOLENE HOLDER, ERIC SANFORD, MICHELLE McNEIL, N. LAEL TELFEYAN, BARBARA ALEXANDER, "JOHN" ALICEA, NICHOLAS SCOPPETTA, JOHN DOES 1-4, HOWARD SAFIR, CITY OF NEW YORK Defendants.
The opinion of the court was delivered by: GEORGE DANIELS, District Judge
MEMORANDUM OPINION & ORDER
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.
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
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
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] the United States Constitution and
State Tort Law." Transcript dated April 18, 2001 at 61.
"A challenge under the Rooker-Feldman doctrine is for lack of
subject matter jurisdiction." Moccio v. New York State Office of
Court Admin. 95 F.3d 195, 198 (2d Cir. 1996). The doctrine
"holds that inferior federal courts lack subject matter
jurisdiction over cases that effectively seek review of judgments
of state courts and that federal review, if any, can occur only
by way of a certiorari petition to the Supreme Court." Phifer v.
City of New York, 289 F.3d 49, 55 (2d Cir. 2002). In Rooker v.
Fidelity Trust Company, 263 U.S. 413, 416, 44 S.Ct. 149,
68 L.Ed. 362 (1923), the United States Supreme Court articulated
that the jurisdiction of the district courts is strictly original
and no federal court, other than the Supreme Court, can consider
a claim to reverse or modify a state court judgment. The Court
further explained, in District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 483 n. 16, 1303, 75 L.Ed.2d 206 (1983)
that to the extent that a plaintiff's claims before the district
court were "inextricably intertwined" with the state court's
findings, the district court did not have jurisdiction to
entertain the claims.
The Second Circuit has found that the Rooker-Feldman doctrine
will bar an action raising the "precise claims raised in a state
court proceeding," but will not bar claims that "were never presented in the state court proceedings and the plaintiff did
not have an opportunity to present the claims in those
proceedings." Moccio, 95 F.3d at 198-199. "[I]nextricably
intertwined means, at a minimum, that where a federal plaintiff
had an opportunity to litigate a claim in a state proceeding
. . ., subsequent litigation of the claim will be barred under
the Rooker-Feldman doctrine if it would be barred under the
principles of preclusion." Id. at 199-200 (internal citations
and quotations omitted). Courts must therefore determine whether
the principles of res judicata or collateral estoppel would
preclude a plaintiff from raising a previously litigated claim in
subsequent proceedings. See Phifer v. City of New York,
289 F.3d 49, 56 (2d Cir. 2002) (finding that in challenges to subject
matter jurisdiction under Rooker-Feldman doctrine, court must
consider two categories of preclusion: res judicata and
collateral estoppel). The Second Circuit further held that
while res judicata does not bar the plaintiff's
section 1983 claims in the instant case as the family
court does not have the power to award monetary
damages, collateral estoppel can be applied to the
plaintiff's section 1983 claims to determine whether
they are barred under Rooker-Feldman.
Id.; see also People United for Children, Inc. v. City of
New York, 108 F. Supp.2d 275, 287 (S.D.N.Y. 2000). Under New York
law, collateral estoppel will apply only if "(1) the issue in
question was actually and necessarily decided in a prior
proceeding, and (2) the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the issue in
the first proceeding." Phifer, 289 F.3d at 56 (citing Moccio,
95 F.3d at 200).
There is nothing in this record to show that the Family Court
made a determination regarding the propriety or impropriety of
ACS's actions. There is no clear finding by the Family Court that
ACS either lacked a reasonable basis for removing the children or
that their removal was justified by the existence of exigent circumstances. The
record before this Court, therefore, does not show that the
issues presented by the plaintiffs in this case were actually and
necessarily decided in a prior proceeding. The record is
similarly devoid of facts or allegations to show that plaintiffs
had a full and fair opportunity to litigate these issues in the
Family Court. Defendants argue that the following quote from
plaintiff Kevin Hollenbeck's counsel's summation to the Family
Court supports their contention that plaintiffs already presented
This whole thing has been blown out of
proportion. . . . Someone up in the bureaucracy of
ACS whose (sic) never seen anybody in this family
decided they are going to make a decision in this
Defendants' Memorandum of Law in Support of their Motion to
Dismiss ("Defendants' Brief") at 8 (quoting Transcript of Family
Court proceedings dated October 4, 1999). This quote is
insufficient to show that plaintiffs had a full and fair
opportunity to argue the issues they currently present. Based on
this record, the claims presented by the plaintiffs are not
inextricably intertwined with the proceedings, determinations and
findings of the Family Court.*fn6
Defendants' motion to
dismiss plaintiffs' claims based on the Rooker-Feldman doctrine
is therefore denied.*fn7
B. Plaintiff's § 1983 Claims
In order to be entitled to relief under § 1983, a plaintiff
must allege: (i) a violation of a Constitutional right and (ii)
must show that the alleged deprivation was committed by a person
"acting under the color of state law." See West v. Atkins,
487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56
L.Ed.2d 185 (1978). Plaintiffs assert violations of their
Fourteenth and Fourth Amendment rights under § 1983.
a. Plaintiffs' Fourteenth Amendment Claims
The Due Process Clause of the Fourteenth Amendment provides
that no State shall "deprive any person of life, liberty, or
property, without due process of law." U.S. CONST. amend. XIV, §
1. The gravamen of plaintiffs' Fourteenth Amendment claims are
based on: the removal of the Hollenbeck children from their
parents' custody without probable cause and without due process
of law; and the commencement of child abuse and neglect
proceedings against the Kevin and Sophie Hollenbeck. Plaintiffs
allege that ACS did not have probable cause to remove the
children from their parent's custody absent a pre-deprivation
hearing in violation of their due process rights under the
1. Procedural Due Process
In reviewing procedural due process claims, courts must first
determine whether a person has been deprived of a protected
liberty interest. The court must then determine what, if any, constitutional process is due. Typically, this means that the
person allegedly deprived of a liberty interest is given
reasonable notice and an opportunity to be heard. The Second
Circuit has found that parents possess a fundamental liberty
interest in "the care, custody and management of their children."
Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999). In the
context of child removal proceedings, procedural due process
prevents state actors from depriving a parent of the custody of
his/her children without a pre-deprivation hearing unless the
children are "immediately threatened with harm." In these cases,
parents must be provided with a prompt post-deprivation hearing.
Tenenbaum, 191 F.3d at 594. During such "emergency
circumstances," a "child may be taken into custody by a
responsible State official without court authorization or
parental consent." Id.
Emergency circumstances are those 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, 81
(2d Cir. 1991). However, "[i]f the danger to the child is not so
imminent that there is reasonably sufficient time to seek prior
judicial authorization, ex parte or otherwise, for the child's
removal, then the circumstances are not emergent." Nicholson v.
Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (quoting
Tenenbaum, 193 F.3d at 594) (internal quotations omitted).
Furthermore, the government must offer objectively reasonable
evidence that harm is imminent. Nicholson 344 F.3d at 171
(citing Gottlieb v. County of Orange, 84 F.3d 511, 520 (2d Cir.
In order to state a procedural due process claim, therefore,
plaintiffs must allege that the children were removed without
parental permission and without Court authorization. Plaintiffs must further allege that the removal was not conducted under
emergency circumstances. Plaintiffs' complaint sufficiently
alleges that ACS's removal of the Hollenbeck children was not
conducted under emergency circumstances.*fn9 Plaintiffs'
allegations, which are to be taken as true for the purposes of
this motion, show that after being notified of suspected abuse
and/or neglect by Tyler's dentist, ACS dispatched an investigator
to meet with and interview the family. After interviewing Mr. and
Mrs. Hollenbeck as well as the infant plaintiff T. Hollenbeck,
the ACS investigator allegedly "determined that [T. Hollenbeck's]
injuries were caused by an accident, and not by child abuse or
neglect." Amended Complaint at 5, ¶ 31. Subsequent to the
determination by the investigator, the amended complaint alleges
that the investigator's supervisors ordered the children's
removal. The amended complaint shows a lag of time between the
end of the investigator's interview and the removal of the
children. Whether there was enough time to seek prior judicial
authorization, ex parte or otherwise, is unclear from
plaintiffs' allegations. However, the allegations do show that
the investigator, at the end of his visit, did not order the
immediate removal of the children. Rather, he discussed the
situation with his supervisors, who subsequently ordered the
children's removal. These are sufficient allegations that the
removal of the Hollenbeck children on September 14, 1999 was not
conducted under emergency circumstances. Defendants' motion to
dismiss plaintiffs' Fourteenth Amendment procedural due process
claims is therefore denied.
2. Substantive Due Process
Substantive due process "protects against government action
that is arbitrary, conscience shocking, or oppressive in a constitutional sense, but not
against a government action that is `incorrect or ill-advised.'"
Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.
1995). "The touchstone of due process is protection of the
individual against arbitrary action of government. Substantive
due-process rights guard against government's exercise of power
without any reasonable justification in the service of a
legitimate governmental objective." Tenenbaum, 193 F.3d at 600
(citing County of Sacramento v. Lewis, 523 U.S. 833, 843,
118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)) (internal quotations
In order to state a substantive due process claim, plaintiffs
must allege that they were deprived of a protected liberty
interest by government action. Indeed, parents possess a right to
custody of their children. See Park v. City of New York, 2003
WL 133232 (S.D.N.Y. 2003) (citing Kia P. v. McIntyre,
235 F.3d 749, 758 (2d Cir. 2000)). Parents and their children have, "in
general terms, a substantive right under the Due Process Clause
to remain together without the coercive interference of the
awesome power of the state." Tenenbaum, 193 F.3d at 600 (citing
Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977))
(internal quotations omitted).
The Second Circuit has found, however, that parents' and
children's substantive due process rights are not violated when
the separation is temporary and conducted to investigate
allegations of child abuse. "[B]rief removals generally do not
rise to the level of a substantive due process violation, at
least where the purpose of the removal is to keep the child safe
during investigation and court confirmation of the basis for
removal." Nicholson, 344 F.3d at 172 (citing Tenenbaum, 193
F.3d at 600-601 n. 12). "As we have explained, the ex parte
removal process is designed to safeguard the child until a court
hearing is practicable, and judicial confirmation must be obtained "forthwith." Id. Furthermore,
custody transfer for this reason "does not result in parents'
wholesale relinquishment of their right to rear their children."
Joyner v. Dumpson, 712 F.2d 770 (2d Cir. 1983).
Plaintiffs' complaint alleges that a post-deprivation hearing
was conducted on September 17, 21, 29 and October 4, 1999
resulting in the return of the children to Sophie Hollenbeck and
the return of Kevin Hollenbeck to the Hollenbeck home. This
temporary separation, done for the purpose of ensuring the safety
of the children, does not rise to the level of an arbitrary or
egregious act of government. Indeed, the prompt post-deprivation
hearings, which concluded with the return of all the children to
their mother shows that no substantive due process rights were
violated. See Tenenbaum, 193 F.3d 581 (finding that "[t]here
is no basis for us to hold that a temporary separation of [the
child] from her parents in an effort to obtain assurance that she
had not been abused would have been so shocking, arbitrary, and
egregious that the Due Process Clause would not countenance it").
To the extent that plaintiffs allege a substantive due process
claim under the Fourteenth Amendment, that claim is dismissed.
b. Plaintiffs' Fourth Amendment Claims
Plaintiffs also allege that the defendants removal of the
children without probable cause constitutes an unlawful search
and seizure in violation of the Fourth Amendment.*fn10
"[T]he Fourth Amendment applies in the context of the seizure of a child
by a government agency official during a civil child-abuse or
maltreatment investigation." Nicholson, 344 F.3d at 172 (citing
Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000). "The
warrantless seizure of a child by government officials pursuant
to a child abuse or neglect proceeding is reasonable if it is
justified by `exigent circumstances.'" Park, 2003 WL 133232 at
* 11 (citing Phifer, 289 F.3d at 61). Exigent circumstances
exist if the state actors "have reason to believe that life or
limb is in immediate jeopardy." Phifer, 289 F.3d at 61.
As we observed in Tenenbaum, a warrantless arrest
can usually be justified by the existence of probable
cause to arrest arising at the time of the arresting
officer's action. By analogy, then, we could conclude
that there is no Fourth Amendment violation committed
by ACS officials carrying out an ex parte removal
where there was probable cause to believe that there
existed facts to merit emergency removal under New
Nicholson, 344 F.3d at 172. Plaintiffs have sufficiently
alleged that ACS lacked probable cause to remove the children
from their custody. Furthermore, as this Court discussed infra,
plaintiffs have sufficiently alleged that exigent circumstances
did not exist at the time of their children's removal.
Defendants' motion to dismiss the children plaintiffs' Fourth
Amendment claims is denied.
C. Qualified Immunity
Defendants also move for dismissal under the theory of
qualified immunity. "A government actor performing a
discretionary task is entitled to immunity from § 1983 suits if
either (a) the defendant's action did not violate clearly
established law, or (b) it was objectively reasonable for the
defendant to believe that his action did not violate such law."
Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 250
(2d Cir. 2001) (internal citations and quotations omitted).
Defendants in the present case assert only the second argument,
that the actions of the ACS caseworkers were objectively reasonable "under
the circumstances known to the ACS employees at the time. . . .
In addition, although not mentioned in the Complaint, ACS had a
long history of involvement with this family, and the dentist's
report was the fourth report of suspected abuse or neglect filed
against this family with child protection authorities, a fact
which was disclosed to the Family Court." Defendants' Brief at
In their reply brief, however, defendants "concede that it is
an unusual case where the question of qualified immunity can be
resolved on a motion to dismiss." Reply Brief at 7. Any evidence
of other prior allegations of abuse or other facts upon which ACS
relied as justification for the children's removal is presently
not before this Court. Defendants' motion for dismissal under the
theory of qualified immunity, therefore, is premature and is
denied without prejudice.
D. Malicious Prosecution
In their Fourth and Fifth Causes of Action, plaintiffs allege
that the defendants "maliciously and without probable cause
commenced child neglect proceedings against" Kevin and Sophie
Hollenbeck in violation of the Fourth and Fourteenth Amendments
and New York State law. Amended Complaint at 12, ¶ 84.*fn11
Although defendants did not address these claims in their
opposition brief, they refer to these causes of action in their
reply brief, arguing that these claims also fail under the
Rooker-Feldman doctrine. As the Court has already determined
that the Rooker-Feldman doctrine does not apply to the issues
before this Court, defendants motion to dismiss these claims is
denied.*fn12 E. Motion to Disqualify Attorney
Defendants have also moved to disqualify plaintiffs' counsel,
the law firm of Lansner & Kubitschek, from representing both the
adult plaintiffs and the infant plaintiffs in the instant
action.*fn13 The crux of defendants argument is that both
parents were accused of neglecting their children thereby
creating a conflict of interest in the present case. Plaintiffs
argue that no conflict of interest exists in the representation
of both the parents and the children by the Lansner & Kubitcschek
This motion is similar, if not exactly the same as a letter
application submitted by Corporation Counsel on behalf of New
York City and ACS seeking to disqualify the same law firm in
another child removal case.*fn14 In Mercedes v. Blue, 2001
WL 527477 (S.D.N.Y. 2001), Magistrate Judge Dolinger found that
the defendants made no showing of an actual or likely conflict of
interest between the mother and her children and declined to
order the attorneys' disqualification. "The competing considerations that are to be
weighed in the balance include the need, on the one hand, to
maintain ethical standards in the legal profession and to avoid
distortions in the substance and appearance at the trial, and, on
the other, to protect the litigant's freedom to select counsel of
his choice." Id. at *2 (citing Emle Industrs., Inc. v.
Patentex, inc., 478 F.2d 562, 564-65 (2d Cir. 1973).
Similar to Mercedes, defendants in the present case assert in
general terms that the parents and the children have at least
potentially conflicting interests because the parents' interest
lies in denying that they mistreated the children, whereas the
children's interest might involve disclosing that the parents did
mistreat them. Corporation Counsel in Mercedes sought, in the
alternative, for the appointment of a guardian ad litem to
interview the children and to determine whether any conflicts
existed. In the present case, the children were assigned a Law
Guardian in the Family Court. Furthermore, plaintiffs argue that
"[o]n behalf of the Hollenbeck children, the law guardian
zealously advocated for the reunification of the Hollenbeck
family and for the dismissal of all charges against the
Hollenbeck parents." Plaintiffs' Brief at 24.
Disqualification motions based on conflicts of interest places
a heavy burden on the moving party to demonstrate that
disqualification is appropriate. See Evans v. Artek Systems
Corp., 715 F.2d 788 (2d Cir. 1983). This high standard required
of the party seeking disqualification is necessary because
disqualification motions "`are often interposed for tactical
reasons,' and . . . `even when made in the best of faith . . .
inevitably cause delay.'" Mercedes at *1 (citing Evans, 715
F.2d at 791-92). Defendants have not met this heavy burden. There
is no specific evidence before this Court of a conflict.
Furthermore, should any conflict arise, it is the responsibility
of plaintiffs' counsel to come forward and inform the Court.
Defendants motion to disqualify plaintiffs' counsel is denied.
Defendants' motion to dismiss under the doctrine of
Rooker-Feldman is denied. Defendants' motion to dismiss
plaintiffs' Fourteenth Amendment claims is denied. The parents'
Fourth Amendment claims are dismissed. Defendants' motion to
dismiss under the theory of qualified immunity is denied.
Defendants' motion to disqualify plaintiffs' attorney is denied.