The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
AMENDED DECISION & ORDER*fn1
Plaintiffs Heidi J. Ingrao and Bradley B. Ingrao, the adoptive parents of RBI, commenced this action on May 18, 2001 asserting claims against Albany County and Montgomery County for acts or omissions that purportedly occurred while RBI was under the care of the Albany County Department of Social Services ("ACDSS"). See dkt. # 1. Part of the action was stayed for several years due to the pendency of a bankruptcy proceeding by Montgomery County's insurance carrier, see dkt. # 13, # 15, # 16, # 17, # 20, although discovery did proceed with regard to claims against Albany County. On July 2, 2004, Plaintiffs commenced a separate action against individual employees of the ACDSS and the Montgomery County Department of Social Services ("MCDSS"). See Compl. [dkt. # 1] in Ingrao v. Grossi, et al., 1:04-CV-769 ("Ingrao II").*fn2 On October 15, 2004, Plaintiffs filed an Amended Complaint in this action. See Am. Compl. dkt. # 92.
In the Amended Complaint, Plaintiffs assert that Defendants' actions or omissions: amounted to actionable negligence or gross negligence (First Cause of Action); violated the Federal Adoptive Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679a (Second Cause of Action); violated the Federal Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-5106 (Third Cause of Action); violated New York Social Services Law and related rules and regulations (Fourth Cause of Action); deprived Plaintiffs of their rights to substantive due process as guaranteed under the Fourteenth Amendment to the United States Constitution (Fifth Cause of Action); and constituted "fraud, concealment, and/or misrepresentation or gross negligence" (Sixth Cause of Action). It should be noted that although the Third, Fourth, and Fifth Causes of Action assert violations of federal law, only the Fifth Cause of Action is brought pursuant to 42 U.S.C. § 1983. Subject matter jurisdiction is action is based upon the diversity of citizenship of the parties and the federal questions presented. See id. ¶¶ 4-11.
Presently before the Court are (1) a motion for summary judgment pursuant to Fed. R. Civ. P. 56 by Albany County, and (2) a cross-motion for summary judgment by Plaintiffs. For the reasons that follow, Albany County's motion is granted in part and denied in part, and Plaintiffs' motion is denied.
On the pending motions, the Court will apply the well-established standard for deciding summary judgment motions as more fully set forth in the March 31, 2006 Decision and Order in Ingrao II. See 3/31/06 Dec. & Ord., pp. 2-4 [dkt. # 91] in Ingrao II.
On May 11, 1990, RBI was born to a 15 year old mother, Ruth B. At the time, Ruth B. was residing in a New York State Division for Youth ("DFY") facility in Onondaga County, New York. In October 1990, at age 3 1/2 months, RBI was removed from Ruth B.'s legal and physical custody upon a finding by the Onondaga County Family Court of inadequate guardianship/neglect on the part of Ruth B. Although there was no finding of sexual abuse by Ruth B., there is some indication, albeit minimal, that Ruth B. sexually abused RBI.*fn4 RBI was placed in the care and custody of the Onondaga County of Social Services.
In November 1990, the legal and physical custody of RBI was transferred to the ACDSS.*fn5 According to Onondaga County, at the time RBI was transferred into ACDSS's custody, he was a healthy child with no known special needs although, as is apparent, he had been the victim of neglect and/or abuse by his mother. There is also an indication that Onondaga County reported to Albany County that the birth mother had a psychiatric history and a violent nature. RBI remained in the primary custody of the ACDSS up to July 10, 1997, and "was subject to after-adoption follow-up and supervision [by ACDSS] for another three years until July 10, 2000." Compl. in Ingrao II ¶ 19.
Once RBI came under the care of ACDSS, he was placed in various certified foster care homes and was seen for a developmental assessment. RBI presented with no exceptional physical or psychological conditions. For approximately the first year (November 15, 1990 to November 25, 1991), ACDSS caseworker Teresa Fitzpatrick handled RBI's case. In January of 1991, when RBI was eight months old, he was placed with the McElroy foster care family. The Family Court had ordered supervised visitation between Ruth B. and RBI, and Fitzpatrick conducted the supervised visitation in her role as an ACDSS employee. The record reflects that during the supervised visitation, Ruth B. demonstrated an overall lack of interest in bonding with the child and generally deficient parenting skills. Plaintiffs contend that before this visitation with Ruth B., RBI was a very happy baby with no notable problems. However, after visits with Ruth B., Mrs. McElroy began to notice negative changes in RBI's behavior. Mrs. McElroy communicated this information to ACDSS representatives.
In April of 1991, Fitzpatrick noted in her caseworker file that she felt that if Ruth B. did not progress in her involvement with RBI by October 1991, a termination of parental of rights action should be commenced. The ACDSS determined to have RBI and Ruth B. seen by a consultant for a "family assessment." Shirley Schlossberg, a certified social worker, conducted the family assessment in July 1991. Schlossberg recommended that a parental termination proceeding be commenced.
ACDSS contends that, based upon its obligation to exercise "diligent efforts" to try to reunite a parent and child before moving to terminate parental rights, see N.Y. Soc. Serv. L. § 384-b(1)(McKinney's 1999);*fn6 Santosky v. Kramer, 455 U.S. 745, 767 (1982)("The State's interest in finding the child an alternative permanent home arises only 'when it is clear that the natural parent cannot or will not provide a normal family home for the child.'") (quoting N. Y. Soc. Serv. Law § 384-b(1)(a)(iv)) (emphasis added by the Sp. Ct.); In re Marino S., Jr., 100 N.Y.2d 361, 368-69 (2003),*fn7 it determined not to petition to terminate Ruth B.'s parental rights and instead to work towards reuniting Ruth B. and RBI. In this regard, Ruth B. was provided "parenting classes" and was allowed to exercise progressively less restrictive visitation, working up to unsupervised overnight visitation. Plaintiffs contend that the visitation was fraught with problems and indications that RBI was not being properly cared for during visitation, including problems with Ruth B.'s male friend "BB" who was regularly in Ruth B.'s apartment. These problems were communicated to ACDSS representatives by Mrs. McElroy. In addition, Mrs. McElroy reported that RBI would cry and scream and resist going to the visits, and would be very emotionally upset upon returning from visits with Ruth B. Plaintiffs contend that ACDSS representatives persuaded Mrs. McElroy not to file "hotline" reports*fn8 about the conditions and circumstances she observed.
In May 1993, ACDSS decided to attempt a "trial discharge" whereby RBI would be allowed to live with Ruth B. on a full time basis although ACDSS would retain legal custody and supervise RBI's time with his mother. This trial discharge lasted for approximately eight (8) months, from May 7, 1993 to January 11, 1994, during which the McElroys were allowed regular "visits" with RBI. Again, Plaintiffs contend that there were numerous and profound problems occurring while RBI was in Ruth B.'s physical custody, and that these problems were negatively affecting RBI's physical, emotional, and psychological well being. Mrs. McElroy relayed to ACDSS caseworkers many of the problems that she observed when at Ruth B's apartment, and describes what she felt was RBI's deteriorating emotional well being.
At some point during this trial discharge, when RBI was about three years old, one of RBI's pre-school teachers observed RBI gyrate his hips and stick his tongue in and out of his mouth in what the teacher felt was a sexually suggestive manner. This led the teacher to conclude that RBI may have seen or been subjected to a sexual act. Although this information was conveyed to ACDSS, Plaintiffs contend that the ACDSS failed to properly investigate it.
On December 24, 1993, when Mrs. McElroy went to pick up RBI for a visit, she observed that there was no food in the refrigerator, and that Ruth B.'s new male friend, "L," was laying on top of RBI on the bed restraining him. Mrs. McElroy reported this to RBI's caseworker and, allegedly, was told not to call the Child Abuse Hotline. ACDSS case records do reflect, however, that the caseworker told Mrs. McElroy that the caseworker would discuss the situation with ACDSS supervisors. See Ex. N. 1153. The notes also reflect that a telephone conference took place the following day between the caseworker and her supervisor, and that the supervisor advised the caseworkers to "conference w/ legal and . . . try and get the case in front of a Judge and ask for some judicial direction." Id.
On January 11, 1994, after a call was placed to the Child Abuse Hotline alleging that Ruth B. had hit, pushed, spit on, bitten, pinched and yelled at RBI, ACDSS removed RBI from his mother's physical custody and placed him in the McElroys' foster home. Upon removal, the child was examined and, based upon the numerous bruises and injuries he had sustained while in his mother's care, ACDSS determined that Ruth B. had abused and maltreated RBI.
After the child was returned to the McElroy foster home, the McElroys felt that RBI had "changed." In this regard, they observed that RBI continually and repeatedly "tantrumed" and was regularly "acting out" sexually. The McElroys determined they could no longer have RBI reside in their home and asked the ACDSS to find a new placement for RBI.
In May of 1994, Ruth B. surrendered her parental rights. With Ruth B.'s surrender, RBI was "freed" for adoption. Accordingly, the ACDSS began to seek a "pre-adoptive" foster home for RBI - that is, a foster home family that was interested in eventually adopting RBI. At some point in time, it had been concluded that RBI suffered from severe hearing limitations and, therefore, he attended a special education pre-school program for deaf children at the Altamont School. While at the Altamont School, RBI worked with a teacher named Sara Doe.*fn9 Mrs. Doe and her husband expressed an interest in becoming certified foster care parents for RBI and perhaps adopting RBI. Although they lived in Montgomery County, the Does were certified as foster parents by Albany County. On June 30, 1994, RBI was placed in the Does' foster home as a pre-adoptive placement.
However, while the child was at the Does' home, he repeatedly acted in a violent and sexual manner (simulating sexual acts with dolls, exposing himself to the Does' young daughter, and masturbating). On August 11, 1995, ACDSS caseworker Claudia Grossi requested that an evaluation be conducted of RBI at the St. Anne's Institute due to the Does' reports that RBI repeatedly "acted out" in a sexual manner and because the child "reportedly tantrums excessively at home and in school." Plt. Ex. OO. The evaluation request, which was filled out by Grossi, indicated that sexual abuse was suspected. Ex. "NN." Grossi testified at her deposition, however, that at the time she requested the evaluation she did not know whether RBI had himself been subjected to a sexual act, and believed it was possible that he might have witnessed sexual acts which, according to Grossi, would be within the definition of sexual abuse. See Gross Dep., pp. 133-35 (ex. "UUUU").
The evaluation was conducted by the St. Anne Institute's Sex Abuse Preventive Services program on October 17, 1995. During the evaluation, when asked if anyone ever touched his private parts, RBI responded "a baby." Ex. OO. He did not disclose any particular instances of sexual abuse occurring to him during the evaluation. Id. The Does indicated during the evaluation that their main concern was RBI's continually escalating level of tantrums and aggressive behaviors, and revealed that at times their 15-year-old son had "backhanded" RBI when he became aggressive. Id. The Does indicated that they thought the best course of action was for the ACDSS to find RBI another pre-adoptive home. ACDSS did not immediately remove RBI from the Does's home.
In April of 1996, ACDSS requested that Children's Hospital in Boston evaluate RBI. The main concern presented at this evaluation was RBI's aggressiveness. See Ex. QQ. The evaluators found that "RBI would appear to be presenting more with behaviors that were engendered by his environment, rather than a clear cut, biologic-based psychiatric or neurologic disorder." Id. The evaluators surmised that RBI's behavioral problems might have been caused by lack of early nurturing, abuse or maltreatment during early life, repeated changes in family settings during his life, frustration arising from his hearing impairment and limitations on his ability to communicate, a form of Attention Deficit/Hyperactivity Disorder, or a combination of all of these. Id. It was concluded that, in order to address these issues, "[m]uch support will be needed by the family [RBI] lives with and the school he attends." Id.
In July 1996, RBI was placed in the pre-adoptive foster home of Plaintiffs Bradley and Heidi Ingrao. Before RBI was placed in their home, the Ingraos told ACDSS representatives "that they could not adopt a child who had been sexually abused." Plaintiffs contend that, despite reason to believe that RBI had been the victim of sexual abuse and was suffering from emotional disturbances ...