The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief District Judge
MEMORANDUM-DECISION AND ORDER
In their amended complaint (Dkt. No. 2), plaintiffs claim their rights were violated when defendant Tompkins County Department of Social Services ("DSS") obtained custody of their daughter E.S., then aged 16, and placed her in foster care. The amended complaint states claims under 42 U.S.C. § 1983 ("section 1983") and New York State law. All claims against defendants Debra Rivera and Barb Blom were dismissed by stipulated order (Dkt. No. 40). Presently before the Court is the motion by defendants for summary judgment (Dkt. No. 63). For the reasons set forth below, the Court grants the motion, dismisses the section 1983 claim on its merits, and dismisses the state law claims without prejudice.
On February 27, 2002, plaintiffs' daughter E.S., then 16, told Heidi Lipson-Copeland, her therapist, that she had been sexually abused by her father, plaintiff Douglas Sutton, for many years, from as early as she could remember until sometime in middle school. Lipson-Copeland reported the allegation to the DSS. The case was assigned to defendant Cindy Jacobson, a DSS caseworker. Jacobson met with E.S., school and law enforcement officials, and E.S.'s mother, plaintiff Anne Serling-Sutton. E.S.'s mother agreed with Jacobson that E.S. would live with a local aunt during the investigation of the allegations. On March 25, 2002, the parents had E.S. taken involuntarily to Four Winds, a psychiatric hospital in Saratoga, New York.
Jacobson, under the supervision of her case supervisor, defendant Pendleton Van Schoick, investigated E.S.'s allegations. The investigation included interviews with and observations of E.S, who consistently maintained that the allegations were true. Jacobson stated that she observed that ES suffered from depression and engaged in self-destructive behaviors, symptoms which Jacobson viewed as consistent with abuse. Jacobson's investigation also included the following: interviews with Lipson-Copeland; interviews with E.S.'s parents, her younger brother, her best friend, her godmother, the aunt with whom E.S. had stayed, and the social worker at E.S.'s school; a visit to the aunt's home while E.S. was staying there; interviews with counselors at Four Winds, including E.S.'s therapist Kelly Keohan; and reviews of documents provided by Lipson-Copeland and Four Winds. Throughout this time, E.S. remained at Four Winds in her parents' custody and control. Jacobson states that as a result of her investigation, she reached a good faith belief that the abuse had occurred.
On April 1, 2002, DSS filed a petition with Tompkins County Family Court seeking a determination that E.S. was the subject of abuse and an order granting custody to DSS. On the same date, Family Court Judge M. John Sherman issued two Orders to Show Cause returnable April 12, 2002, one to each parent, ordering them to show cause why temporary custody of E.S should not be granted to DSS. In the case of the father, the Order to Show Cause set forth the following findings: that "[t]he child appears to so suffer from neglect/abuse of [her father] that foster care ... is necessary to avoid imminent danger to the child's life or health"; that based on the petition and caseworker's affidavit her return to the home and care of her parents "would be contrary to the best interest of the child in that [her father] has subjected [her] to sexual contact"; that based on the petition and caseworker's affidavit reasonable efforts to prevent or eliminate the need for the removal of the child from the home were made ... [in that DSS] attempted to develop a safety plan for the child and the [father] refused to cooperate"; and that "[i]mminent risk to the child would not be eliminated by the issuance of an order of protection[.]" The order recited that the findings were based on the DSS petition. With respect to the mother, the court found that the child appeared to suffer from neglect by the mother and that the mother is "unwilling to protect the child" from the father and "is unwilling to develop a reasonable safety plan given the position of the child at this time"; the findings were otherwise similar. Family Court ordered that "pending the hearing on this motion, care and custody of the subject child, [E.S], is temporarily placed in the Department of Social Services" and that the parents "refrain from any and all contact with the child [E.S.] until further order of [Family] Court." Despite the fact that Family Court had placed temporary custody with the DSS, DSS did not take physical custody of E.S. but rather allowed her to remain at Four Winds.
In their answers, dated April 12, 2002, both parents sought dismissal of the petitions. They denied any abuse or neglect of E.S. and incorporated by reference the affidavit of the mother, sworn on April 10, 2002, and the affidavit of a psychiatrist, Dr. Howard Feinstein, sworn on the same day. The mother's affidavit set forth in substantial detail E.S.' mental health and treatment history and asserted that the DSS petition "omits significant facts and distorts several events[.]" She stated that she and the father have "implored DSS to conduct a full investigation, but the caseworkers have not looked at the pertinent materials I have briefly discussed." The mother also asserted that the plaintiffs have been "baffled" that DSS, while informing the court of E.S.'s allegation of sexual abuse, has failed to mention that E.S.'s numerous allegations that she suffered from multiple personality disorder "have been discredited by two psychiatrists." The mother further stated that she faxed the caseworker a release to talk to Dr. Feinstein, whose affidavit stated that he had met with E.S. once in May 2001, had reviewed some of her writings, and had supervised E.S.'s therapy with her counselor, Heidi Lipson-Copeland, in June and July, 2001. In his affidavit, he stated his opinion that E.S. is "often an unreliable reporter," that she may have come to believe some of her claims based on suggestions from others, that "it is more accurate to think of the current storm she has stirred up as an imaginative creation prompted by the suggestions of strangers rather than a case of Multiple Personality Disorder," and that he wrote to Jacobson expressing his "worry about the risks of taking [E.S.'s] claims as truthful without very careful evaluation." He does not mention the sexual abuse allegations. He also noted that DSS had not contacted him.
On the return date of the Order to Show Cause, April 12, 2002, DSS appeared by counsel, a law guardian appeared on behalf of E.S. and both parents appeared with counsel. No testimony was heard. The transcript shows that E.S.'s law guardian informed the court that E.S. told her that the sexual abuse did happen and that she did not wish to be placed with either parent. Plaintiff Douglas Sutton, through his counsel, told the Court that he had "no intention of having any contact with his daughter and that "since the allegation was made he has agreed that his daughter needs to be getting the proper treatment and he agrees that it is not in her best interest while this allegation is being made that she should have any contact with him."
Judge Sherman stated on the record that E.S. should be placed in the continuing custody of DSS. He stated that "if the child is going to be psychologically damaged further by a return to the home at this stage, no matter what anyone has done, if her fears are so great that a return to the home is going to damage her, then it does not sound like it is a very good idea to do that at this moment." Judge Sherman made no finding regarding the truth or falsity of the sexual abuse allegations, but rather stated that placement in DSS custody was in E.S.'s best interest due to her "own attitude."
The ensuing orders, dated May 16, 2002, specified that the determinations were based on the petitions. In the orders, entitled "Order (Directing Temporary Removal of Child after Petition Filed)," Family Court found that E.S. appeared to suffer from abuse or neglect by her parents and that continued removal was necessary "to avoid imminent danger to the child's life or health" because she "has alleged that her father sexually abused her." (Emphasis added). In the case of the mother, Family Court further found that "the child indicates that she does not feel safe with the [mother] as the [mother] does not believe her[.]" The Court concluded that return to her home would be contrary to the child's best interests because she "has allegedthat her father sexually abused her[.]" (Emphasis added.) Family Court granted continued temporary removal and placement with DSS.
On April 12, 2002, DSS removed E.S. from Four Winds and placed her in a foster residence, the home of Debra Rivera and Barb Blom. DSS intended the placement to be temporary, until the family with whom DSS planned to place E.S. returned from vacation; however, E.S. requested to remain in the Rivera-Blom household and was permitted to stay there throughout her placement with DSS.
Thereafter, Family Court closely monitored the case.*fn1 On November 12, 2002, Family Court designated Robert J. Alpern, M.D., to perform a psychological evaluation of the family. The Court stated its intention "that the evaluation address two general areas: (1) insofar as possible, whether the mental and emotional condition of the parties tends to establish or contradict the allegations of abuse and neglect set forth in the petitions; and (2) in light of the conclusions reached as to the mental and emotional condition of the parties, but not limited to whether or not the allegations of abuse and neglect are established, what is an appropriate treatment plan to address the problems of the family." The order also specified a number of issues to be addressed by the evaluation. Thereafter, Family Court scheduled a nine-day fact-finding hearing to commence on February 20, 2003.
In an extensive report dated January 20, 2003, Dr. Alpern concluded that E.S. had not been abused by her father and had not been endangered by her parents. He recommended that she be placed in a residential psychiatric treatment center or therapeutic boarding school.
On January 31, 2003, the parents moved for the return of E.S. to their custody under section 1028 of the New York Family Court Act. Family Court scheduled a hearing on the motion for February 5, 2003; however, on that date, prior to the hearing, DSS withdrew the petitions. DSS stated that it did so based on the recommendation of its attorney, because E.S. refused to testify, although she had previously agreed to do so.
Family Court accepted the withdrawal of the petitions and dismissed them with prejudice under section 1051(c) of the New York Family Court Act.*fn2 During the proceedings, plaintiffs' counsel requested the court to make an express finding that "facts sufficient to sustain the petition under this article [were] not established," thus explicitly basing the dismissal on the ground in section 1051(c). Judge Sherman stated "that's not the Court's intention" and then stated:
I will make the requisite finding under 1051(c). In this case the Court's aid is not required further in this matter based upon Dr. Alpern's report and based upon the discussions I've had with counsel for the parents about what they plan to do at this stage, which is to follow the recommendations of Dr. Alpern, and ... as soon as they can do this, [to] get [E.S.] into a therapeutic boarding school.
Accordingly, I am then dismissing, based on those grounds, the petition before the Court relative to the neglect under 1051(c) on the grounds that the Court's further aid is not required.
In a written order dated February 25, 2003, Family Court vacated the prior custody and protection orders, dismissed the petitions, and awarded full legal custody of E.S. to her parents effective February 5, 2003. Thereafter, the parents arranged for E.S. to be taken to a wilderness facility in Utah. Eventually she recanted her accusations.
In the amended complaint in the present action, plaintiffs assert one federal claim, a section 1983 claim that the removal of E.S. and her placement with DSS infringed plaintiffs' rights to substantive due process. Plaintiffs also set forth a number of state law claims. Plaintiffs assert claims only on their own behalf; there are no claims by or on behalf of E.S.
By Memorandum-Decision and Order dated September 28, 2004 (Dkt. No. 27), this Court denied defendants' motions to dismiss on grounds of lack of subject matter jurisdiction and immunity.
Section 1983 cause of action
Plaintiffs' section 1983 cause of action -- the first cause of action in the amended complaint -- is set forth below in its entirety, except for the ad damnum clause:
The Defendants, under color of state law, deprived Plaintiffs of their rights, privileges, or immunities secured by the ...