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Mable Rivera, et al v. John Mattingly

September 12, 2011



The claims in this case arise from the removal of three children-the infant plaintiffs in this action-from the home of Mable and Anthony Rivera, the children's foster parents and relatives. Plaintiffs allege that New York City's Administration for Children's Services ("ACS") and its contracted social service agency, Family Support Systems Unlimited, Inc. ("FSSU"), removed the infant plaintiffs from the Riveras' kinship foster home without due process of law. Plaintiffs also allege that this removal violated the Fourth Amendment and state law. Plaintiffs seek monetary and declaratory relief. In addition to asserting claims against New York City (because ACS is a City agency) and FSSU, plaintiffs bring claims against several New York City and FSSU employees. They have also named the Commissioner of the New York State Office of Children and Family Services ("OCFS") as a defendant.

FSSU and certain FSSU employees (the "agency defendants") move for summary judgment. The agency defendants argue that they did not violate the Riveras' due process rights or their rights under the Fourth Amendment and state law. Plaintiffs cross-move for summary judgment against the agency defendants.

The agency defendants' motion for summary judgment dismissing the federal law claims is granted. The federal law claims having been dismissed, the court declines to retain jurisdiction of the state law claims against these defendants, and they are dismissed.

Plaintiffs' cross-motion for partial summary judgment against the agency defendants is denied.


The following facts are not in dispute unless otherwise stated.

Mable and Anthony Rivera have been married for over thirty years. Mable's sister is Betty Chapman Fields, who is now deceased. Betty's daughter (and Mrs. Rivera's niece) is Ramona Ledbetter.

Ramona gave birth to Ashley on December 25, 1993 and Laporsha on December 1, 1994. Ashley and Laporsha share the same father. Subsequently, Ramona gave birth to two daughters with another man. The first, E.S., was born on January 10, 1998, and the second, B.C., was born on February 27, 1999. E.S. and B.C. are Ashley and Laporsha's half-sisters. Mrs. Rivera is grand-aunt to all four girls.

Betty Chapman Fields' other daughter, Latoya Chapman, has a daughter named J.C., who was born on September 19, 1997. J.C. is first cousin to Ashley, Laporsha, E.S., and B.C. Mrs. Rivera is J.C.'s grand-aunt.

Prior to entering foster care and living with the Riveras, Ashley, Laporsha, and J.C. lived with Betty Chapman Fields. In December 1998, ACS removed them from Betty's care. Later that month, Mrs. Rivera agreed to take in Ashley, Laporsha, and J.C.

At this time, the Riveras entered into a foster parent contract with FSSU. The agreement states that the children may be removed and provides that foster parents have the right to an Independent Review and a Fair Hearing as a means of challenging agency actions.

E.S. and B.C. entered foster care in December 1999. Upon entering foster care, E.S. and B.C. were placed with the Riveras.

The Riveras live in a two-family house in Cambria Heights, Queens. As of March 31, 2006, the Riveras, Laporsha, Ashley, E.S., B.C., and J.C. lived in the lower floors of the house. As of this date, Ashley, Laporsha, and J.C. had lived there for about eight years, while E.S. and B.C. had lived there for about seven years. The Riveras' adult daughter, Rhonda, and her two sons also lived in an apartment on the top floor of this house.

On March 31, 2006, Ashley told her mother, Ramona, that her sister, Laporsha, was in the upstairs apartment having sex with Rhonda's boyfriend, Leandro Johnson. At this time, Mrs. Rivera was away from the house, and Mr. Rivera was in the backyard playing with B.C., J.C., and one of his grandsons. Rhonda called FSSU to report the allegation.

Upon learning of the allegation, FSSU Supervisor Andrea Cummings and Case Worker Anny Garcia went to the Rivera home to check on the girls' safety.

After arriving, Ashley told Cummings that Laporsha and Johnson were locked in the bathroom having sex. Later, Laporsha and Ashley told Cummings that Johnson had previously showed them a pornographic movie in Rhonda's apartment. The agency defendants also assert that Laporsha told Cummings that while watching this movie, Johnson touched Laporsha on the "butt" and breasts and told her that "he wanted to do what was in the movie to her."

Plaintiffs assert that Laporsha later admitted that no one was having sex and that Ashley had made up the story to get her in trouble. Plaintiffs add that Laporsha and Ashley have a history of telling lies.

In any event, when Mrs. Rivera returned home, she spoke with the FSSU employees about whether the children should be brought to the agency or hospital to be examined. Ultimately, Mrs. Rivera informed Garcia and Cummings that she objected to taking the girls to the agency, because the agency "could say anything," whereas the hospital could provide "an objective opinion" about whether the children had been sexually abused. While Garcia and Cummings were on the telephone with their supervisor, Mrs. Rivera put Laporsha, Ashley, E.S., B.C., and J.C. into her car to take them to the hospital. When Cummings ran after the car to find out what Mrs. Rivera was doing, Mrs. Rivera locked the car doors and proceeded to Franklin General Hospital in Nassau County.

Although Garcia and Cummings did not know what Mrs. Rivera was doing when she left with the children, Mrs. Rivera had told Rhonda before she left that she was taking the children to the hospital. She also subsequently called FSSU Supervisor Felix Madu and explained where she was taking them. FSSU reported the allegations of sexual abuse to the State Central Registry, which is a statewide registry of child abuse reports maintained by OCFS.

At the hospital, the girls were examined by a physician and interviewed by a hospital social worker, a New York City Police Detective from the Special Victims Unit, and an investigator from ACS's Office of Confidential Investigations ("OCI").*fn1 Plaintiffs assert that all of these individuals concluded that none of the five girls had been sexually assaulted or abused. However, the agency defendants assert that the examination simply showed no physical evidence of sexual penetration. Also, the agency defendants note that the NYPD Detective told Cummings and Garcia that the children should not be returned to the Rivera home at that time.

Although Mrs. Rivera told Cummings that she would bar Johnson from her house, FSSU Associate Vice-President, Reheme Bukenya, instructed Cummings and Garcia to temporarily remove the children from the Riveras' home. In her instructions, Bukenya anticipated a temporary removal for a few days while OCI performed an investigation. FSSU's stated reason for the removal was concern as to whether the Riveras were providing the children with adequate guardianship. At the time of the removal, FSSU did not inform the Riveras of their right to challenge the removal through an Independent Review.

After the removal, Mrs. Rivera contacted the children's law guardian, who informed her that she had a right to request an Independent Review of the removal decision, which would be a social work conference conducted by ACS. On April 3, 2006, Mrs. Rivera requested an Independent Review, and ACS held it on April 18. Although the Riveras and the children's law guardian attended, they were excluded from a portion of the proceeding, and plaintiffs assert that they were not permitted to question witnesses.

Mina Shah was the Independent Review Officer at this conference. Shah issued a written report on May 8 which stated that the children were not to be returned to the Riveras and were to be placed elsewhere.

The Riveras appealed Shah's decision by requesting a Fair Hearing before an OCFS administrative law judge ("ALJ"). Although plaintiffs state that they requested this Fair Hearing "immediately," they do not provide a date for their request. The agency defendants concede, however, that Mrs. Rivera requested the Fair Hearing "within the time limits provided by law."

On July 14, before any Fair Hearing was held, OCI issued a report which concluded that the allegations of abuse had not been substantiated and that the allegations were "unfounded." Mrs. Rivera claims that she called Michael Warren, an ACS Case Manager, in late July 2006 to discuss OCI's conclusions from this report. On August 18, she went to FSSU to discuss the report further. On August 23, FSSU performed a safety assessment of the Rivera home and determined that it was safe for the children.

Based on the July 14 OCI report and the August 23 safety assessment, FSSU determined that it would be appropriate to return the children to the Rivera home. As a result, the Fair Hearing, which had been scheduled for August 23, was adjourned until August 30 to effectuate the return of the children.

On August 25, Mrs. Rivera went to FSSU's office to pick up the children. When Mrs. Rivera arrived, however, Cummings informed her that she could not take the children. The agency defendants have demonstrated that ACS overruled FSSU's decision to return the children. They point to a statement by Diana Cortez, ACS's Bronx Borough Manager, Office of Case Management, to the effect that she believed that returning the children to the Rivera home would place them in imminent danger. Cortez also wrote in a September 13, 2006 Family Services Progress Note that "ACS cannot support the return of the S/C children to the maternal great-aunt, Mable Rivera." In addition, Warren stated that he ordered FSSU not to return the children, because he did not have possession of the OCI report and believed that he was bound by the Independent Review Officer's determination.

On August 30, plaintiffs appeared at OCFS's Special Hearing Office for their Fair Hearing. Neither FSSU nor ACS appeared for this hearing, but the ALJ refused to enter a default against FSSU ...

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