The opinion of the court was delivered by: Cedarbaum, J.
Defendants the City of New York, the City of New York Department of Social Services, Human Resources Administration ("HRA"), Child Welfare Administration ("CWA"),*fn1 Robert Little, sued in his official capacity as Commissioner of the CWA and in his personal capacity,*fn2 Dolores Perry, sued in her official capacity as a CWA caseworker and in her personal capacity (collectively, "the municipal defendants"), and Father Flanagan's Boystown ("Boystown") move for summary judgment on plaintiff Stephanie Bruker's second amended complaint. Bruker moves for partial summary judgment and for several other forms of relief. The complaint alleges that defendants violated Bruker's free exercise right under the First Amendment when they placed her daughter Elianne in foster care with deliberate disregard for the fact that mother and daughter were Jewish. The complaint also alleges other violations of federal and state law. Bruker has raised issues of fact with respect to whether defendants Perry and Boystown made reasonable efforts to accommodate Elianne's religious upbringing. However, Bruker has failed to show that the remaining defendants can be held liable for the actions of these defendants, or that any defendant is responsible for the other alleged violations of Bruker's rights. Accordingly, Bruker's motion for summary judgment is denied, and defendants' motions are granted in part and denied in part, for the reasons which follow.
Bruker commenced this action on June 8, 1993. She filed the original complaint in her own behalf and in behalf of her minor children, Elizabeth-Ann Marcovitz ("Elianne"), born June 5, 1978, and Allison Natalie Marcovitz ("Allison"), born November 11, 1976. The complaint named the municipal defendants as well as the Catholic Home Bureau ("CHB"), a private foster care agency. The case was placed on the suspense docket at plaintiff's request on January 20, 1994. On June 5, 1998, the case was restored to active status. Bruker filed an amended complaint on June 1, 1999. Because her daughters had become adults, the amended complaint asserted only Bruker's claims. Bruker added several defendants: Mayor Rudolph Giuliani; Deputy Mayor John Dyson; Marva Livingston Hammons, Commissioner of the HRA; Katherine Kroft, Executive Deputy Commissioner of the HRA; and Boystown.
All of the defendants except Boystown moved to dismiss the amended complaint. That motion was granted in part and denied in part in an opinion dated March 31, 2000. See Bruker v. City of New York, 92 F. Supp. 2d 257 (S.D.N.Y. 2000). The complaint was dismissed against Giuliani, Dyson, Hammons, Kroft, and the CHB, and dismissed in part against the remaining defendants.
After discovery, Bruker sought leave to file a second amended complaint in order to add a substantive due process claim and claims of tortious interference with custody, fraudulent concealment, and the "tort of outrage." Magistrate Judge Pitman, to whom the case had been referred, denied plaintiff leave to add these claims in an opinion and order dated January 31, 2003. See Bruker v. City of New York, 93 Civ. 3848, 2003 WL 256801 (S.D.N.Y. Feb. 4, 2003). However, he permitted her to amend the complaint to add facts learned in discovery and to replead the outrage claim (which he construed as a claim of intentional infliction of emotional distress) with greater particularity.
Bruker filed a second amended complaint on February 10, 2003. Defendants move for summary judgment on the following counts:*fn3
Counts Three and Four allege that defendants willfully placed Elianne in a non-Jewish home, failed to supervise Elianne's religious practices there, and failed to transfer her to a Jewish home. While Bruker articulates these as separate claims of violation of her free exercise and substantive due process rights under the Constitution, they are based on the same actions and will be analyzed as a single free exercise claim.
Count Five alleges that defendants violated Bruker's substantive due process right to family privacy and confidentiality by publicizing the neglect petition filed against her to the media and to Elianne's attorney.
Count Six alleges that the municipal defendants violated Bruker's procedural due process right by failing to give her a hearing before removing Elianne from her custody. This claim survived defendants' motion to dismiss, but was limited to a claim of injury to plaintiff's liberty interest occurring in the period between Elianne's removal and the post-deprivation hearing which plaintiff received. Bruker, 92 F. Supp. 2d at 267.
Bruker also contends that defendants are liable for intentional infliction of emotional distress, negligence, gross negligence, negligent supervision, negligent training, and negligent hiring.
Following are the facts which defendants offer in support of their motions for summary judgment. Evidence offered by Bruker, and Bruker's objections to defendants' evidence, are included where relevant.
Sometime before March of 1992, Bruker and her two adopted daughters, Allison and Elianne Marcovitz, moved from their native Canada to the Bronx. Between March and May of 1992, three Reports of Suspected Child Abuse or Maltreatment were filed with the New York Central Register of Child Abuse and Maltreatment.*fn4 A CWA caseworker, defendant Perry, was assigned to investigate. In the course of the investigation, Perry spoke with Elianne, but never with Allison. She attempted to speak with Bruker, but Bruker said that she would speak with the CWA after she returned from a trip with Allison to Canada. Perry's notes indicate that CWA caseworkers spoke with the girls' psychiatrists, a friend of the family, and the sources of the reports.
At the end of April, Bruker agreed to voluntarily place Allison in foster care. She stipulated, in the Voluntary Placement Agreement she signed, that Allison was to be placed in a foster home only through Jewish Child Care ("JCC"), a Jewish foster care agency.*fn5
After the third report was filed, Perry met with Elianne and observed scratches and slight bruises on her. Elianne told Perry she was trying to work things out with her mother and that she did not feel that she was in danger. On May 26, Allison was hospitalized after attempting suicide. That same day, Perry sought legal assistance in order to file a neglect petition.
On June 5, 1992, the CWA filed two petitions in the Family Court. The petitions recounted the three abuse reports and Allison's attempted suicide, and sought the protection of the court for the children. Judge Cira Martinez signed an order placing the children in the custody of the CWA. However, neither child was removed from Bruker's custody at that time.
Elianne and Bruker appeared in court on June 9, 1992. Elianne stated, through her law guardian, that she did not wish to return home with her mother. Her law guardian proposed that she enter foster care. Bruker's attorney responded as follows:
I see no reason for [Elianne] not to return home, although as she is of age to make her own determination, at this point... I understand that she will make that determination, although I would request a 1028 hearing, and if necessary, we will go forward with that.... I would also let the court know that the child, Elliane [sic], is under psychiatric care. She's in the middle of her exams in school, and that any placement must take that into consideration, that I expect all her examinations shall be taken on time, that she will go to the same school if possible, so that she can finish her semester, and also that she continues under psychiatric care that she's now getting.
After further discussion among the parties, the court remanded both children to the custody of the CWA and ordered that Elianne continue attending her school in the Bronx for the balance of the semester. Specifically, the judge stated: "Remand to C.S.S.... of Elliane [sic] as well as Allison, pending any other appropriate notifications of voluntary placement. The child Elliane is ordered to attend Junior High School 141 until completion of the school year."
It is unclear whether defendants sought a Jewish home for Elianne on the day she left her mother's custody. Elianne testified during her deposition that Perry asked her whether she wanted to be placed in a Jewish home and informed her that the CWA was having a difficult time finding one. Elianne told Perry it was not important. But Perry testified in a Family Court hearing that she understood that she was to find Elianne a home in the Bronx so that Elianne could continue to attend her school, and did not learn until the next day that Bruker required a Jewish home for Elianne. This testimony is flatly inconsistent with Perry's deposition testimony, in which she states that she became aware that Bruker required a Jewish foster home for Elianne because Bruker said so in court on June 9.*fn6 Finally, there is no question that Perry, as the family's caseworker, was aware of Allison's voluntary placement, which the parties agreed was to occur only through a Jewish agency.
It is undisputed that on the evening of June 9, the CWA placed Elianne in the home of Susan Savoca via the CHB. Savoca is Catholic. The parties do not dispute that Savoca was informed that Elianne was Jewish and was informed that one of her obligations as a foster mother was to protect the religion of the child placed in her care. Elianne testified at her deposition that Savoca never went to church, only spoke about Catholicism with Elianne in response to the girl's questions, and never told Elianne how important her religion was to her. Bruker offers evidence which shows that Susan Savoca requested a Catholic child when she became certified as a foster parent. Savoca stated that she could consider other religions, but would be most comfortable protecting the faith of a Catholic child. Bruker also disputes Elianne's credibility, noting at least one instance in which Elianne admitted to lying in the Family Court proceedings.
On June 11, 1992 the Family Court commenced a hearing pursuant to N.Y. Family Court Act § 1028 to determine whether Elianne and Allison should be returned to Bruker's custody pending the outcome of the neglect proceeding. On June 17, the court determined that returning the girls to Bruker's custody did not pose an imminent risk to their safety or health and ordered that the girls be returned. The CWA appealed this ruling, and the Appellate Division stayed the Family Court's order pending the appeal. Bruker and the CWA subsequently agreed that the CWA would withdraw the appeal and return Allison to Bruker's custody, provided that Bruker consented to Elianne's continued remand.
The CWA has a policy of requiring all of the foster care agencies with which it contracts to provide for the religious needs of the children referred to them, regardless of the religious affiliation of the agency itself. On June 26, after Elianne completed her final examinations, Perry sent a written request to the CWA's Allocations Division, seeking a kosher Jewish home for Elianne. On July 2, David Goldstein, one of Perry's supervisors, directed Perry and others to monitor the CWA's progress in locating a kosher home for Elianne and to report that progress to him on a weekly basis.
Defendants provide evidence that OHEL, a Jewish foster care agency, received a referral, but needed proof that Elianne was Jewish. An interview with OHEL was scheduled for August 5. Bruker contends that she, not the CWA, first contacted OHEL to get the agency involved. A memorandum from Goldstein in Elianne's CWA case file indicates that plaintiff was involved in soliciting OHEL's participation in the case.
Defendants also note that an appointment was made for Elianne with the Bronx House in late June. Plaintiff produces a letter from the Executive Director of the Bronx House, who states that it is not and has never been a foster care agency.
In late July, Elianne told the CWA that she wanted to stay with Savoca. According to Perry's notes, Elianne informed the caseworker that while she would have been happy with a Jewish home had she been placed in one initially, she was now unwilling to leave Savoca. On August 7, the CWA sought the opinion of Elianne's therapist, Dr. Setterberg, as to whether Elianne should be moved from her foster home and whether moving her to a Jewish home would be harmful. In response, Dr. Setterberg and Elianne's other therapist, Dr. Kadish, noted: "To the extent that [Elianne] views her Jewish identity as positive, a Jewish placement could be constructive." Dr. Setterberg also spoke with a caseworker at OHEL, Esther Feuereisen, and stated that he believed that transfer to an orthodox Jewish home would be harmful to Elianne.
Feuereisen interviewed Elianne on August 12. Among other things, she noted: "In truth, [Elianne] has no interest in Judaism or religion. She, however, acknowledges her Jewishness and claims to attend services at an orthodox synagogue with the encouragement of her Catholic foster family." Feuereisen recommended that Elianne be "given a chance with a Jewish family." Feuereisen's notes indicate that she spoke with Perry and Bruker on August 14. Both confirmed that the parties were exploring a placement for Elianne with an aunt in Canada and would get in touch if placement with OHEL were still an option. On August 18, Perry advised Judge Martinez that OHEL may have found a suitable home in New Jersey. However, Judge Martinez would not accept a placement outside New York, other than Canada.
On September 2, 1992 Bruker filed an order to show cause in the Family Court, seeking an order directing the CWA to transfer Elianne to a Jewish agency. The motion was granted. The CWA then filed an order to show cause seeking to vacate the order directing Elianne's transfer. The CWA offered an affidavit from Perry in which she stated that Elianne threatened to run away if she was transferred from Savoca's home, and that Elianne and her foster parent were attending synagogue and observing Jewish dietary laws. After a hearing, Judge Martinez ordered that Elianne be transferred to an agency run by persons of the Jewish faith as required by New York law. The judge found that Savoca "unfortunately displayed a woeful lack of knowledge with respect to Jewish dietary laws." In re Elianne Marcovitz, N-6300-1/92, at 4 (Sept. 24, 1992). The court also determined that the foster mother's testimony "clearly indicates that she has not received proper follow up guidance from Catholic Home Bureau nor from CWA to support the preservation and protection of the child's religious faith." Id. at 10. The court noted that after it became clear, contrary to Perry's claims, that Savoca was not following Jewish dietary practices, the CWA argued that "it is not realistic or practical for this foster mother to keep a Kosher home because 'she is a Christian and she is simply doing her job.'" Id. at 9. A follow-up order indicates that the court determined that Perry had intentionally submitted a fraudulent affidavit when she affirmed that Elianne was following Jewish practices. The court also noted the animosity Perry had displayed toward Bruker. The court ordered that Perry have no direct contact with the child. Addendum Decision and Order, In re Elianne Marcovitz, N-6300-1/92 (Sept. 24, 1992).
The CWA appealed the order directing Elianne's transfer. The Appellate Division granted a stay, but affirmed the Family Court's decision on December 22, 1992. See In the Matter of Elianne M., 592 N.Y.2d 296 (1st Dep't 1992). When Elianne learned of the decision, she ran away from Savoca's home.
Defendants offer evidence that in early January 1993, a Modern Orthodox family in White Plains, the Gutermans, expressed interest in taking Elianne. Judge Martinez permitted a homefinding. Bruker produces an affidavit from Mark Guterman, who said that he and his wife contacted the CWA after learning about Elianne on television. Two caseworkers visited them and discouraged them from taking Elianne because she was "trouble." The Gutermans decided not to pursue the placement.
Defendants' records demonstrate that as of January 7, JCC had located no family and OHEL had no family in the Bronx. A CWA caseworker spoke with Elianne about a home in Flushing on January 15. Elianne was not sure that she was interested, and did not want a religious family. On January 20, OHEL located the Comet family, and interviewed the Comets on January 21. On January 25 Elianne turned herself in to the CWA and was placed in the Comet home.
Bruker offers evidence which suggests that in exchange for Elianne surrendering herself and living with the Comets, the CWA agreed that Elianne could visit Savoca on weekends and after school.
Shortly after entering the Comet home, Elianne complained that she felt uncomfortable in an orthodox home. OHEL appears to have found another home in Riverdale, but Elianne would not go there because it was too close to Bruker. Elianne ran away from the Comets on March 30 and went to Savoca's home. According to notes in the CWA case file, Cynthia Schaeffel, an OHEL caseworker, informed the CWA that it was difficult to place Elianne with Jewish families because she refused to join in religious activities.
Elianne was temporarily placed with a New Jersey family, the Zechers, on approximately April 1. As of April 6, OHEL had several homes available in Manhattan, but they were all orthodox, and Elianne had indicated that homes run by OHEL were "too religious." Judge Martinez agreed to permit Elianne to continue to stay with the Zechers in New Jersey for the time being. On April 14, OHEL advised the CWA that it only had orthodox foster homes available. On April 23, OHEL sent an urgent request to rabbis and placed an ad in the Jewish News seeking a Modern Orthodox foster family for Elianne. As of April 29, JCC had located one home, but once again Elianne refused the placement because of its proximity to Bruker.
On May 6 Elianne was scheduled to be transferred from the Zechers to the Swerdlick family in Far Rockaway. However, Elianne ran away when Perry and an OHEL worker attempted to pick her up at school to take her to the Swerdlicks. She appears to have gone to Savoca.
OHEL eventually received twenty-one responses to its advertisement for a Jewish family, but by June 15, it advised the CWA that it had found no family willing to accept Elianne. On June 15 a group home called Geller House placed Elianne on its waiting list, but according to CWA notes, Bruker did not want Elianne placed there.
Because the court, OHEL, the CWA, and Bruker had growing concerns about Elianne's mental health, she was admitted to Four Winds Hospital for an evaluation on June 17, 1993. Four Winds eventually recommended a residential treatment program as the best environment for Elianne. In July, according to OHEL notes, Bruker asked the hospital to keep Elianne for another month while she sought a therapeutic boarding school. The CWA sought placement for Elianne in group homes while continuing to seek placement under a Jewish agency. The Jewish Board of Family and Children's Services had a group home, called Brightwater, but according to defendants' notes, Bruker rejected the placement. JCC had no placements available. OHEL asked to be relieved from the case in August because it had no appropriate placements. Only one group home, the Edwin Gould Academy, had available space. Elianne was placed there on September 21, 1993.
While at Edwin Gould, Elianne indicated on the home's "Spiritual Life Program" sign-up sheet that she wished to attend Catholic services.
According to CWA notes, in October 1993 Edwin Gould informed the CWA that it could not keep Elianne and recommended placement in a group home or foster home through a Jewish agency. Notes in the CWA case file reveal that the CWA spent several months searching for an appropriate facility for Elianne. The only home which would take Elianne was Boystown. Elianne entered Boystown on August 3, 1994.
Under its contract with the CWA, Boystown must accept all children referred to it unless it has a lack of vacancies or believes that such placement would be detrimental to the child. The contract states that Boystown can give no preferences on the basis of religion and cannot refuse to provide services to any child because of his or her religious background. Boystown required its staff to ensure that each child in its care was able to observe the religious practices specified by his or her parents.
According to Carolyn Novicoff, who was Eastern Regional Director of Boystown while Elianne was placed there, Elianne was introduced to the local rabbi and encouraged to attend services shortly after she arrived at Boystown. She was also encouraged to observe Jewish holidays. Novicoff, who is Jewish, stated that she spoke with Elianne about Judaism on several occasions and celebrated Jewish holidays with her. She also unsuccessfully sought a Hebrew school for Elianne.
Elianne testified that Novicoff spoke with her constantly regarding Judaism, tried to teach her how to cook a Jewish meal, and encouraged her to pursue Jewish practices. She also testified that she was given opportunities to attend shul and celebrate Jewish holidays, but she chose not to. She testified that no one ...