The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff Virginia Lomnicki ("Plaintiff") brings this action on behalf of herself and her minor children, Eugene, Robert, and Joseph Lomnicki ("Plaintiff's children"). After New York State Family Court, New York County, determined that Plaintiff had neglected her children, and terminated Plaintiff's custodial rights,*fn1 Plaintiff's children were taken from her and placed in the custody of Defendants Cardinal McCloskey Services ("CMS") and the City of New York (collectively, "Defendants"). Plaintiff sues pursuant to 42 U.S.C. § 1983 for alleged violations of constitutional rights, including due process violations and race discrimination, in connection with the removal of her children from her custody.
Defendants move to dismiss the Second Amended Complaint pursuant to Rules 12(b)(1), 12(b)(6), 12(h)(3), and 9 of the Federal Rules of Civil Procedure. For the following reasons, Defendants' motion to dismiss is GRANTED.
The following facts are alleged in the Second Amended Complaint or taken from public records. Facts alleged in the Second Amended Complaint (economical though they may be) are presumed true for the purposes of the instant motions.*fn2
Plaintiff is the mother of three children: Eugene Lomnicki, age 14; Robert Lomnicki, age 11; and Joseph Lomnicki, age 10. (Notice of Mot. of Def. Cardinal McCloskey Servs. ("CMS Mot.") Exs. K-M (Family Court orders).) Plaintiff also has a daughter, Kimberly, who is not a subject of this case. (Id. Ex. E.) On July 31, 1998, after a caseworker filed a petition requesting a state court order determining Eugene, Robert, and Joseph to be neglected children, the Family Court issued an Order Directing Temporary Removal for each child, noting that "respondent mother [Plaintiff] uses excessive corporal punishment." (Notice of Mot. of Def. New York City ("NYC Mot.") Exs. C-E ("the July 1998 Family Court Order").) As a result of this order, the children were placed in the custody of the New York City Administration for Children's Services ("ACS"). In August 1999, following a hearing and an examination of the facts and circumstances of Plaintiff's family, Judge Susan Larabee of the New York State Family Court determined "that continuation in the children's home would be contrary to the best interests of the children," and accordingly Judge Larabee issued an Order of Disposition Neglect removing the children from Plaintiff's custody and placing the children in the custody of Defendants for a one-year period. (CMS Mot. Ex. E ("the August 1999 Family Court Order").) Defendants carried out the removal of Eugene, Robert, and Joseph from the custody of their mother, Plaintiff, and CMS took custody. (Second Am. Compl. ¶¶ 2-3, 13.) For each of the next three years, the Family Court issued Orders for Extension of Placement, extending the temporary placement of Plaintiff's Children with CMS. (CMS Mot. Exs. F-H.) Finally, on April 13, 2004, the Family Court ordered that "all [of Plaintiff's] parental rights be terminated and that all custody and guardianship be transferred to [the Department of Social Services] and Agency [CMS for] immediate adoption by current Foster Parents." (Id. Ex. I.)
Plaintiff alleges that the removal of the children from her custody was "based on unproven allegations of abuse and/or neglect," (Second Am. Compl. ¶ 35) and that Defendants removed her children from her because she is white, placing the children with non-white foster parents (Second Am. Compl. ¶ 13).
According to the Second Amended Complaint, Plaintiff has complied with all of Defendants' requests, including that she obtain counseling and attend parenting courses. (Second Am. Compl. ¶ 6.) Plaintiff asserts that she has no history of drug or alcohol abuse or a criminal record. (Id. ¶¶ 7, 9.) She is gainfully employed and has created a plan to provide for her children. (Id. ¶¶ 8, 10.)
Plaintiff filed suit against Defendants on June 14, 2004. Plaintiff amended her complaint twice, filing the Second Amended Complaint on January 13, 2005. The Second Amended Complaint asserts four causes of action. First, Plaintiff alleges that Defendants improperly removed Plaintiff's children from her because she is white and placed them with non-white foster parents.*fn3 (Id. ¶ 13.) Second, Plaintiff asserts a violation of her due process right to care for her own children. (Id. ¶ 21.) Third, Plaintiff, on behalf of her children, alleges that Defendants have not provided proper foster care to the children. (Id. ¶ 26.) Fourth, Plaintiff charges that the children "were seized based upon unproven allegations of abuse and/or neglect." (Id. ¶ 35.)
At a conference on January 21, 2005, the Court raised concerns about a possible conflict of interest faced by Plaintiff's attorney who was at that time representing both Plaintiff and her children in connection with this litigation. Following the conference, Plaintiff's counsel wrote to the Court and advised that he would withdraw from representing Eugene, Robert, and Joseph Lomnicki. Thereafter, the Court appointed the firm of Paul, Hastings, Janofsy & Walker, LLP as guardian ad litem for the Lomnicki children.*fn4 Lomnicki v. Cardinal McCloskey Servs., No. 04-CV-4548 (S.D.N.Y. Dec. 13, 2005) (order appointing guardian).
On April 27, 2006, CMS filed its motion to dismiss pursuant to Rules 12(b)(1), 12(b)(6) and 9 of the Federal Rules of Civil Procedure, and on May 1, 2006, the City of New York filed its motion to dismiss pursuant to Rules 12(b)(1), 12(b)(6) and 12(h)(3).*fn5
At oral argument, the Court was advised, for the first time, that Robert and Joseph have been adopted, thus divesting Plaintiff of any standing to pursue this case on their behalf. However, Ms. ...