The claims in this case arise from the decision of New York City's Administration for Children's Services ("ACS") to remove three children-the infant plaintiffs in this action-from the home of Mable and Anthony Rivera, the children's foster parents and relatives. In particular, plaintiffs bring claims against the City of New York, Family Support Systems Unlimited, Inc. ("FSSU"), and several city, FSSU, and state employees. Plaintiffs allege that ACS and its contracted social service agency, FSSU, removed the infant plaintiffs from the Riveras' kinship foster home without due process of law. Plaintiffs also allege that this removal constituted an unlawful seizure in violation of the Fourth Amendment and state law. Plaintiffs seek declaratory and monetary relief.
FSSU and certain FSSU employees (the "agency defendants") moved for summary judgment on all claims, and plaintiffs cross-moved for summary judgment against agency defendants. The court granted defendants' motion for summary judgment.
Plaintiffs now move for reconsideration of that decision, arguing that the court wrongfully refused to recognize a fundamental substantive due process right to the integrity of kinship foster families, and that the court incorrectly denied plaintiffs' pre-removal and post-removal procedural due process claims. Specifically, plaintiffs assert that the emergency removal of the minor plaintiff children without a hearing violated plaintiffs' procedural due process rights, and that the cumulative post-removal delays in the case also violated due process. Defendants oppose the motion on the ground that it does not meet the strict standard for granting such motions.
A full account of the facts underlying this litigation and its procedural history prior to the present motion can be found in this court's opinion deciding the summary judgment motions in the case. See Rivera v. Mattingly, 2011 U.S. Dist. LEXIS 102903, No. 06-cv-07077, at *4-17 (S.D.N.Y. Sept. 12, 2011). The present motion relies entirely on the factual record already before the court.
THE COURT'S SUMMARY JUDGMENT DECISION
On September 1, 2010, FSSU, agency defendants Ms. Cummings, and Ms. Bukenya moved for summary judgment, and on November 5, 2010, plaintiffs cross-moved for summary judgment. The court granted defendants' motion and denied plaintiffs' motion on September 12, 2011.
In its opinion, the court, after disposing of threshold matters not germane to the current motion, held that the plaintiffs "possess a constitutionally protected liberty interest in the integrity of their kinship foster family as a matter of law." See Mattingly, 2011 U.S. Dist. LEXIS 102903, at *24. The court then turned to the question of how much process the plaintiffs were due in the circumstances.
With respect to the pre-removal procedural due process claim, the court held that the emergency removal of the minor plaintiff children without prior notice did not violate due process, because defendants' actions satisfied the standard for emergency removal of foster children without notice contained in state regulations previously upheld by the Supreme Court against constitutional challenge (albeit in the context of non-kinship foster families). Id. at *23. In particular, the court noted that the regulations allow emergency removal without notice "where necessary to protect the health and safety of the child." Id. at *13. The court then held that the "decision to remove the children did not violate procedural due process in light of [the] serious allegations of child abuse in the Rivera's home." Id. at *24.
With respect to the post-removal procedural due process claim of delay, the court held that the interval between the Independent Review on April 18, 2006 and the Fair Hearing on October 2, 2011 did not deprive the plaintiffs of due process. Rather, the court found that "there was considerable activity in this period of time. There was not mere delay." Id. at *13, 25. In particular, the court noted:
[T]he Independent Review Officer issued her report on May 8. OCI issued its report on July 14. Mrs. Rivera spoke with Warren, an ACS Case Manager, in late July and went to FSSU's office to discuss OCI's report on August 18. FSSU performed a safety assessment on August 23 and determined that it was safe to return the children to the Riveras' home. As a result of this determination, the Fair Hearing was adjourned to August 30 to allow the return of the children. However, ACS overruled FSSU and did not allow the children to be returned, thus requiring the Fair Hearing to be held." Id. at *25-26.
The court also noted the complexity of the investigation and that during this time it was resolved that "Ashley, Laporsha, E.S., and B.C. would return to their mother and that J.C. would be adopted by the Riveras." Id. at *27-28. The court concluded that "[v]iewing this entire picture, it cannot be said that there was a 'delay' which deprived plaintiffs of due process." Id. at *28.
Lastly, with respect to plaintiffs' substantive due process claims, the court held that since "the court is aware of no cases in this circuit holding that a biologically-related foster parent has a fundamental right to maintaining the stability of her family" and "courts should proceed cautiously when entertaining claims that would broaden the scope of substantive due process protections," it would not ...