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Alex LL. v. Dep't of Social Services of Albany County

January 22, 2009

IN THE MATTER OF ALEX LL., INDIVIDUALLY AND AS PARENT AND GUARDIAN OF ALEX MM., AN INFANT, APPELLANT,
v.
DEPARTMENT OF SOCIAL SERVICES OF ALBANY COUNTY ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Peters, J.P.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 7, 2008

Before: Peters, J.P., Rose, Lahtinen, Kavanagh and Stein, JJ.

Appeal from an order of the Supreme Court (Platkin, J.), entered September 7, 2007 in Albany County, which, among other things, granted defendants' motion for summary judgment dismissing the complaint.

This civil rights action stems from plaintiff's half-decade struggle to gain custody of his son (born in 1995). According to plaintiff, from the time the child was taken into the custody of defendant Department of Social Services of Albany County (hereinafter DSS), DSS, through its caseworkers and supervisors, continuously imposed "frivolous and irrelevant" requirements in order for him to obtain custody of the child, such as drug assessments and screenings, anti-drug education programs, mental health evaluations, preventive services and parenting classes, all in the absence of any proof that plaintiff had been an unfit, neglectful or abusive parent in the past or would be in the future. He further asserts that the DSS agenda was at all times tailored toward terminating his parental rights, rather than reuniting him with his child, and that this goal was accomplished by various "illogical loopholes" imposed, repeated requests to Family Court that custody of the child remain with DSS and ultimately the filing of a petition to terminate his parental rights. Plaintiff claims that this conduct, among other things, violated his substantive due process right to raise his child free from unlawful state interference and his son's 4th Amendment right to be free from seizure by government officials. The facts giving rise to these claims are as follows.

In June 1995, the child was placed in the custody of DSS on an emergency basis after Jacqueline NN., the child's mother, left the 18-day-old infant with a casual acquaintance for nine hours and failed to inform the acquaintance of where she was going or leave adequate supplies to care for him. As a result of this incident, as well as the fact that she used cocaine during her pregnancy and the infant had tested positive for cocaine at the time of his birth, DSS commenced a neglect proceeding against the mother. Within days of the filing of the neglect petition, an order of filiation declaring plaintiff to be the biological father of the child was issued, and he filed his first of five petitions seeking custody of the child. A July 6, 1995 order, entered upon the parties' consent, granted plaintiff supervised visitation upon the completion of a substance abuse evaluation and required a psychological assessment as well as compliance with a temporary order of protection. On July 10, 1995, the mother appeared before Family Court and admitted neglect of the child. Family Court (Maney, J.) adjudicated the child to be neglected and placed him in the custody of DSS until July 1996.

In the fall of 1995, plaintiff underwent a drug evaluation at Whitney Young FACTS substance abuse program. The FACTS evaluator notified defendant Carol Boyco, a caseworker with DSS, that, although plaintiff's drug screen came back negative, plaintiff was known to its staff to be a drug user, and recommended that he complete a 12-week substance abuse educational program. Thereafter plaintiff was granted weekly supervised visitation with the child for one hour at St. Catherine's Center for Children.

In February 1996, DSS received the results of the court-ordered psychological evaluation of plaintiff and the mother, which raised concerns about plaintiff's ability to parent his child. Specifically, the report indicated that plaintiff failed to protect the child from the mother's drug use during pregnancy and had a minimal understanding and appreciation of parental responsibilities. The evaluator noted that, despite the existence of an order prohibiting unsupervised contact between the child and his mother, plaintiff and the mother were residing together, expecting yet another child and planning on raising their family together*fn1. The evaluator expressed concern that if forced to choose between protecting the child from the mother's drug use and maintaining an ongoing relationship with her, plaintiff may choose the latter. Continued placement of the child was recommended, and it was suggested that plaintiff attend parenting classes and counseling.

In April 1996, Boyko sent correspondence to Family Court requesting an extension of the child's placement with DSS. Thereafter, Family Court ordered an extension of the child's placement with DSS until July 1997*fn2. By May 1996, plaintiff had successfully completed the recommended parenting classes and progressed to unsupervised visitation with the child. However, because plaintiff had still failed to complete the 12-week substance abuse education program recommended in the initial court-ordered drug evaluation, Boyco required him to participate in a second substance abuse evaluation by FACTS. Following this second evaluation, FACTS staff informed Boyco that plaintiff was "untruthful, defensive and anti-social" and recommended that he attend an anger management program and have a biweekly screening of his urine.

In October 1996, plaintiff declined further services through Parsons Child and Family Center, the preventive services provider recommended by DSS to help reunite him with the child. A discharge summary report prepared by Parsons expressed concerns about plaintiff's ability and willingness to care for his son, and noted that his deep mistrust of DSS and "the system" prevented any type of relationship with his prevention worker.

In April 1997, plaintiff tested positive for the presence of marihuana. Shortly thereafter, Boyco requested another extension of the child's placement with DSS, informing Family Court that plaintiff's contact with the child would revert from unsupervised to supervised visitation due to plaintiff's known drug use and lack of involvement in a substance abuse treatment program. Thereafter, DSS reported that plaintiff was inconsistent in his visitations with the child.

In July 1997, DSS commenced a proceeding to terminate the mother's parental rights based upon her abandonment of the child. Family Court granted the petition and this Court affirmed (Matter of Alex MM., 260 AD2d 675, 676 [1999]). Plaintiff commenced a second proceeding seeking custody of the child in September 1997, which was dismissed by Family Court for failure to state a cause of action. Plaintiff filed his third petition seeking custody in December 1997, which was dismissed by Family Court because he refused to attend an upcoming intake appointment with Parsons. In March 1998, plaintiff commenced a fourth proceeding seeking custody of the child. This petition was dismissed by Family Court in October 1998, as plaintiff "[did] not [wish] to cooperate with services at St. Catherine's [Center for Children]."

In January 1999, by petition executed by defendant Timothy Kircher, a DSS caseworker, a proceeding to terminate plaintiff's parental rights on the ground that he permanently neglected the child was commenced and, in May 1999, plaintiff filed his fifth petition seeking custody of the child. The following month, by two separate orders of Family Court, plaintiff's parental rights were terminated and his fifth custody petition was dismissed. Upon plaintiff's appeal of those orders, this Court reversed Family Court, dismissed the petition to terminate his parental rights, reversed the order dismissing his custody petition, and remitted the matter for a hearing before a different judge (Matter of Alex LL. v Albany County Dept. of Social Servs., 270 AD2d 523 [2000]). Upon the ...


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