The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiffs Heidi J. Ingrao and Bradley B. Ingrao, the adoptive parents of RBI, commenced an 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 Compl. [dkt. # 1] in Ingrao v. County of Albany, 1:01-CV-730 (N.D.N.Y.) ("Ingrao I"). 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 in Ingrao I, although discovery did proceed with regard to claims against Albany County. On July 2, 2004, Plaintiffs commenced a separate action against Claudette M. Grossi, Janet Lynch, Margaret Flynn, Teresa M. Fitzpatrick, Andrea Burger, Barbara M. Lynch and Jo Hepinstall, employees of the ACDSS, and against William L. Austin, Robert Reidy, and Rosemary Brown, employees of the Montgomery County Department of Social Services ("MCDSS"). See Compl. [dkt. # 1] in Ingrao v. Grossi, et al., 1:04-CV-769 (N.D.N.Y.) ("Ingrao II"). On October 15, 2004, Plaintiffs filed an Amended Complaint in Ingrao I. See Am. Compl. [dkt. # 92] in Ingrao I.
On March 31, 2006, the Court issued a Decision and Order on the defendants' motions for summary judgment in Ingrao II. See 3/31/06 Dec. & Ord. [dkt. # 91] in Ingrao II. In that Decision, the Court granted summary judgment to Defendants Fitzpatrick, Austin, Reidy, and Brown, and denied summary judgment with leave to renew as to the remaining defendants. Id. Familiarity with the March 31, 2006 Decision and Order is presumed.
On October 2, 2006, the Court issued a Decision and Order on Albany County's motion for summary judgment and Plaintiffs' cross-motion for summary judgment in Ingrao I. See 10/2/06 Dec. & Ord. [dkt. # 178] in Ingrao I.*fn1
In that decision, the Court granted in part and denied in part Albany County's motion, and denied Plaintiffs' cross-motion. Id. Familiarity with the October 2, 2006 Decision and Order is also presumed.
On January 18, 2007, the Court (1) granted the joint motion to dismiss all claims and counterclaims against Montgomery County, Austin, Reidy & Brown; see 1/18/07 Order [dkt. # 218] in Ingrao I; and (2) granted Albany County's motion to consolidate Ingrao I and Ingrao II. Consolidation was granted because the two cases arise from the same transactions and occurrences, and raise similar legal issues. See 1/18/07 Dec. & Ord. [dkt. # 217] in Ingrao I.
Now before the Court is the renewed motion for summary judgment in Ingrao II by the remaining defendants - Claudette M. Grossi, Janet Lynch, Margaret Flynn, Andrea Burger, Barbara M. Lynch and Jo Hepinstall.
The relevant general background for this case has been set forth in the Court's previous summary judgment decisions and will not be repeated. Where facts pertinent to a particular defendant are necessary to understand the instant decision, those facts will be set forth below.
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.
In Ingrao II, Plaintiffs assert claims under 42 U.S.C. § 1983 ("Section 1983") contending that Defendants' actions, or inactions, deprived the infant plaintiff, RBI, of his right to due process as guaranteed under the Fourteenth Amendment to the United States Constitution, see Compl. in Ingrao II (First Claim for Relief), [dkt. #1], and violated state common law duties that Defendants purportedly owed to RBI. Id. (Second & Third Claims for Relief). Defendants move for summary judgment contending that the Section 1983 claims against them must be dismissed because Plaintiffs have failed to establish that any of the Defendants violated RBI's federally protected rights, or, alternatively, that Defendants are entitled to qualified immunity. Defendants also assert that Plaintiffs' state law claims are barred because Plaintiffs failed to identify any such claims in the Notice of Claim served on the County of Albany.
Two previous decisions define the parameters of the claims in this matter and constitute relevant law of the case. The first is the decision on the previous summary judgment motions in Ingrao II. See 3/31/06 Dec. & Ord. [dkt. # 91] in Ingrao II. In that decision, the Court dismissed, inter alia, all claims against Defendant Fitzpatrick. Because Fitzpatrick, like the current movants, was an ACDSS employee, the decision on her motion is relevant to many of the arguments raised on the instant motion. On Fitzpatrick's motion the Court held:
Plaintiffs seemingly contend that Fitzpatrick violated RBI's substantive due process rights because she failed to move for termination of Ruth B.'s parental rights. See Pl. Sur-Reply Mem. L. p. 2. As Defendant points out, however, there is no authority for the proposition that a caseworker has the obligation to move to terminate parental rights. Indeed, it is doubtful whether an individual caseworker, as opposed to the agency for which she works, is entitled to commence a parental termination proceeding. See N.Y. Soc. Serv. Law 384-b(3)(b). To the extent that the substantive due process claim is based upon Fitzpatrick's failure to otherwise stop the contact between Ruth B. and RBI, the claim is also deficient. The uncontested facts indicate that Fitzpatrick supervised visitation between RBI and [his biological mother] Ruth B. because a court ordered the visitation. If Fitzpatrick could not have commenced a parental termination proceeding of her own accord or otherwise stopped the visitation, then the Court fails to see how there could be the requisite causation between RBI's injuries and Fitzpatrick's failing to act in this regard. See e.g. Deters v. Lafuente, 368 F.3d 185, 189 (2d Cir. 2004).
Further, and assuming that Fitzpatrick could have commenced a parental termination action or suspended court ordered visitation (or at least put such action in motion), the Plaintiffs fail to present proof from which a reasonable fact finder could conclude that Fitzpatrick acted, or failed to act, with the requisite mental state to make out a viable substantive due process claim. See [Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005)]; [Doe v. New York City Dep't of Soc. Servs., 649 F.2d 134, 145 (2d Cir. 1981)]; [Lynn v. St. Anne Institute, 2006 WL 516796, at *5 (N.D.N.Y. March 2, 2006)]. There is no evidence that Fitzpatrick disregarded a known risk to the child, made a discretionary decision that allowed Ruth B. contact with RBI, allowed more contact than the court order required, hid what she observed during the visitation, or allowed Ruth B. to injure the child during visitation. Despite Plaintiffs' broad conclusory allegations to the contrary, there is no evidence from which a reasonable fact finder could conclude that the child suffered any injury because of Fitzpatrick's actions, or inactions, or that she displayed deliberate indifference to the child's well being during the period of time that she served as his case worker or from the response to the July 1993 hotline call.
To the extent that Plaintiffs' Section 1983 claim against Fitzpatrick is based on a procedural due process violation, the claim fails because the discretionary aspects of parental termination proceedings and child protective actions in New York fail to create actionable property or liberty interests. See [Hilbert S. v. County of Tioga, 2005 WL 1460316, at *10 - *13 (N.D.N.Y. June 21, 2005)].
Still further, even if Fitzpatrick had the power to commence a parental termination proceeding or otherwise interfere with visitation, the dictates of New York law in effect at the time generally required that diligent efforts be made to assist, develop and encourage a meaningful relationship between parent and child, including insuring visitation. See In re Marino S., Jr., 100 N.Y.2d 361, 368-69 (2003). Thus, it cannot be said that Fitzpatrick acted objectively unreasonably under the law in existence at the time by failing to move for parental termination or preventing visitation. Therefore, and in the alternative, she is entitled to qualified immunity for any conceivable constitutional violation that arises from her alleged failure to act in this case. Accordingly, all Section 1983 claims asserted against Teresa M. Fitzpatrick are DISMISSED.
The state law claims against Teresa M. Fitzpatrick are also DISMISSED because Plaintiffs failed to identify any claims against this defendant in the Notice of Claim served on the County of Albany. See Moore v. Melskey, 14 A.D.3d 757, 759 (3rd Dept. 2005). 3/31/06 Dec. & Ord. in Ingrao II at pp. 12-14 (footnotes omitted).
The second decision relevant to the instant motion is the one issued on Albany County's summary judgment motion in Ingrao I. See 10/2/06 Dec. & Ord. in Ingrao I. There, the Court dismissed all federal claims except RBI's substantive due process claim. Id. In denying summary judgment on this claim, the Court wrote:
In support of RBI's substantive due process claim, Plaintiffs assert a host of individual theories which, they contend, constitute separate policies or practices that demonstrate ACDSS's deliberate indifference to RBI's welfare and that caused him to suffer harm. In this regard, Plaintiffs assert that the ACDSS had separate policies or customs of (1) failing to move for termination of the parental rights of the parents of foster children in its charge although authorized to do so; (2) failing to investigate and/or report evidence of abuse or neglect occurring to foster children in its charge; (3) "not protecting foster children from being hit by older foster children if there were no marks left;" (4) failing to train or supervise caseworkers in certain aspects of their job, such as detecting and treating emotional difficulties or sexual abuse experienced by foster children; (5) failing to train and supervise caseworkers on intervention tools and procedures that are designed to protect children in foster care; (6) failing to train and supervise caseworkers on proper monitoring of the welfare of children in long-term foster care placements; and (7) failing to train caseworkers on "matching children to foster families." See Plf. Mem. L., pp. 4-21.
Although the parties attempt to parse out each of these alleged failures for purposes of determining whether any one, individually, arose to the level of a policy, practice, or custom causing a substantive due process violation, the Court sees the allegations as interrelated and inextricably intertwined. The allegation, at least as far as the Court can see, is not that RBI had a substantive due process right to have his biological mother's parental rights terminated, or a substantive due process right to have caseworkers implement certain "intervention tools," or even a substantive due process right to have social service officials follow any specific state-mandated procedures, but rather that he had a substantive due process right to be safe and protected while in the care of the ACDSS. In this case, if there is a substantive due process violation, it will be because a jury finds, from the totality of circumstances, that the ACDSS was deliberately indifferent to this right as evinced by ACDSS's failure to investigate dangers that were know (or reasonably should have been known), and failed to implement available procedures that could have ameliorated such dangers.
A few points require clarification. First, from a factual perspective, the substantive due process claim is a close call. The parties have submitted a mountain of evidence on these motions that includes a two-thousand (2,000) page case record chronicling ACDSS's involvement with RBI while he was in ACDSS's care. While Plaintiffs' counsel has done a thorough job of wading through these records and picking out instances that arguably demonstrate that ACDSS caseworkers could have done a better job, the extensive record hardly reflects that RBI was left unsupervised and forgotten while in foster care. Because a reasonable jury might conclude that the conglomeration of these instances evince a pattern, practice, or custom of deliberate indifference to RBI's rights, Defendant's motion for summary judgment must be denied. By the same reasoning, ...