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Schweitzer v. Crofton

United States District Court, E.D. New York

March 25, 2013

IRWIN and LINDA SCHWEITZER, as representatives of the estate of Victoria Schweitzer, and as next friends to J.S., Plaintiffs,

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For Irwin and Linda Schweitzer, as representatives of the estate of Victoria Schweitzer, deceased, and as next friends to J.S., Plaintiff: William M. Brooks, LEAD ATTORNEY, Touro College Jacob D. Fuchsberg Law Center, Central Islip, NY.

For Lisa Crofton, personally, Suffolk County Department of Social Services, Defendants: Luz Adriana Lopez, LEAD ATTORNEY, Christopher M. Gatto, William G. Ford, Suffolk County Attorney's Office, Hauppauge, NY.


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MARGO K. BRODIE, United States District Judge.


Plaintiffs Irwin and Linda Schweitzer bring the above-captioned action as representatives of the estate of their daughter Victoria Schweitzer[1] (" Victoria" ) and on behalf of their granddaughter J.S., against Defendants Linda Crofton and Suffolk County Department of Social Services (" DSS" ), for claims arising out of Defendants' temporary placement of J.S. in foster care. Plaintiffs assert claims for procedural due process, substantive due process, and unlawful seizure pursuant to 42 U.S.C. § 1983. Plaintiffs also assert violations of Title II of the Americans with Disabilities Act (" ADA" ) and Section 504 of the Rehabilitation Act of 1973 (" Rehabilitation Act" ).[2] Defendants moved for summary judgment on all claims. Plaintiffs cross moved for partial summary judgment on the unlawful seizure, procedural due process, ADA, and the Rehabilitation Act claims and for leave to amend the Complaint to substitute Suffolk County for DSS and to add Elizabeth Hogan, Defendant Crofton's supervisor, as a defendant. For the reasons set forth below, the Court grants Defendants' motion for summary judgment and denies Plaintiffs' cross-motion for partial summary judgment. The Court also denies Plaintiffs' request to amend the Complaint.

I. Background

Victoria Schweitzer suffered from bi-polar disorder for which she was prescribed psychiatric medication, including Lithium and Zyprexa. (Defs. 56.1 ¶ 3; Pls. 56.1 ¶ 3; Deposition of Victoria Schweitzer (" VS Dep." ) at 25.) She had a history of non-compliance with psychiatric treatment and medication and had previously been hospitalized for reasons related to her disorder. (Defs. 56.1 ¶ 4; Pls. 56.1 ¶ 4; see Deposition of Rosalie Banovich (" Banovich Dep." ) 25:4-11; Deposition of Elizabeth Lunde

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(" Lunde Dep." ) 26:1-23.) According to Plaintiffs, " [d]uring recent times, Victoria remained medication compliant and administered her own medicine." (Pls. Opp'n Mem. 6; see Deposition of Linda Schweitzer (" LS Dep." ) 22:4-7.)

Victoria lived independently in housing provided by Concern for Independent Living, Inc. (" CIL" ) and a case manager visited her on a regular basis. (Defs. 56.1 ¶ 5; Pls. 56.1 ¶ 5; see Lunde Dep. 14:11-20.) An Assertive Community Treatment (" ACT" ) team would typically visit Victoria twice a week to provide mental health support, such as medication management, client counseling, and case management services. (Defs. 56.1 ¶ 6; Pls. 56.1 ¶ 6; see Banovich Dep. 14:5-15:4; VS Dep. 27:3-31:15.)

In late November 2004, Victoria became pregnant by her boyfriend, who suffered from schizophrenia. (Defs. 56.1 ¶ 7; Pls. 56.1 ¶ 7.) In December, upon instructions from her doctor, Victoria discontinued or reduced the dosage of her Lithium medication out of concern that the medication would harm the baby.[3] (Pls. 56.1 ¶ 64; Linda Schweitzer Affidavit (" LS Aff." ) ¶ 14.) According to Victoria's mother, Linda Schweitzer, once Victoria was placed back on Lithium, she stabilized at the " highest level she was capable of functioning." (Pls. 56.1 ¶ 65; see LS Aff. ¶ 14.)

Staff members at CIL were worried about Victoria's health throughout her pregnancy and questioned where the baby would live after she was born. (Defs. 56.1 ¶ 8; Pls. 56.1 ¶ 8.) CIL staff members had the experience of showing up for case management visits, ringing the doorbell, banging on the door, and calling Victoria's phone, only to find that Victoria was unable to respond because she was sound asleep.[4] (Defs. 56.1 ¶ 9; Lunde Dep. 21:1-13.) Elizabeth Lunde, Associate Director of CIL, was concerned that Victoria would not be able to take care of the baby on her own and was worried about Victoria being the sole caretaker for almost any portion of the day. (Defs. 56.1 ¶ 10; Lunde Dep. 21:9-24, 40:5-7.) According to Lunde, CIL proposed to Victoria's parents that, at a minimum, one of them stay overnight with Victoria and her daughter to see whether she was able to respond to the infant, and to assist her in doing so, but that " didn't happen." [5] (Defs. 56.1 ¶ 10; Lunde Dep. 40:13-24, 106:2-15.) CIL staff members were also concerned about Victoria's physical condition because of her obesity. (Defs. 56.1 ¶ 9; Lunde Dep. 30:12-22.) In May 2005, Victoria was 5 foot 5 inches tall and weighed approximately 300

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pounds. (Defs. 56.1 ¶ 9; Pls. 56.1 ¶ 9; LS Dep. 126:3-25.) ACT team members were similarly concerned about Victoria's ability to care for her baby given her long psychiatric history and past non-compliance with treatment and medications. (Defs. 56.1 ¶ 11; Pls. 56.1 ¶ 11; see Banovich Dep. 87:10-24.)

Victoria's parents lived approximately 15 to 25 minutes away from Victoria. (Defs. 56.1 ¶ 13; Pls. 56.1 ¶ 13.) They offered to help care for the child; however, Victoria assumed that she would care for the child herself. (Defs. 56.1 ¶ 13; Pls. 56.1 ¶ 13; VS Dep. 81:7-20; LS Dep. 42:25-45:2.) Victoria's parents purchased provisions for the baby, including a crib, playpen and toys. (Defs. 56.1 ¶ 14; Pls. 56.1 ¶ 14; VS Dep. 68:8-25.) In order to prepare for motherhood, Victoria completed a parenting class at Stony Brook University. (VS 84:19-85:12.)

On April 26, 2005, Victoria was admitted to Stony Brook University Medical Center (" Stony Brook Hospital" ) for complications related to her pregnancy, including pre-eclampsia and high blood pressure. (Defs. 56.1 ¶ 15; Pls. 56.1 ¶ 15.) As a result of Victoria's Lithium medication, J.S. was born prematurely. (Defs. 56.1 ¶ 17; Pls. 56.1 ¶ 17.) Victoria gave birth to J.S. by cesarean section on May 17, 2005. (Defs. 56.1 ¶ 15; Pls. 56.1 ¶ 15; VS Dep. at 84:12-13.) Due to delivery complications, Victoria remained hospitalized until approximately May 21, 2005, and J.S. remained hospitalized until approximately May 28, 2005. (Defs. 56.1 ¶ 15; Pls. 56.1 ¶ 15; VS Dep. 102:7-22.) J.S.'s condition improved once the Lithium passed out of her system. ( Id.)

While in the hospital, Victoria became " mad" and " annoyed" when the psychiatry staff asked her who the president was and what day of the week it was. (Defs. 56.1 ¶ 16; Pls. 56.1 ¶ 16; VS Dep. at 90:4-91:23.) Plaintiffs claim that Victoria became mad and annoyed because she felt that the actions of the hospital staff were demeaning, and they maintain that Victoria did not respond in an irritated manner. (Pls. 56.1 ¶ 16; VS Dep. 90:4-92:21.) Darlene Gelin, a social worker from Stony Brook Hospital, stated in her records that Dr. Burke felt the baby faced no immediate physical or emotional danger from the mother. (Defs. 56.1 ¶ 20; Pls. 56.1 ¶ 20; Defs. Ex. E. (" May 20, 2005 Gelin Record" ).) However, due to concerns about Victoria's level of irritability, a referral was made to the Child Protective Services (" CPS" ) hotline. ( Id.) CPS rejected the referral, and Gelin informed hospital staff of the need to monitor Victoria's interaction with the baby closely. ( Id.)

On or about May 21, 2005, Victoria was discharged from the hospital and stayed with her parents in order to recuperate. (Defs. 56.1 ¶ ¶ 22, 28; Pls. 56.1 ¶ 22, 28.) Gelin reported that Victoria was " extremely uncomfortable while holding the baby." (Defs. 56.1 ¶ 23; Pls. 56.1 ¶ 23; Defs. Ex. F (" May 24, 2005 Gelin Report" ).) Victoria " reportedly had a light grasp of [the] child and could not support the head properly" and was at risk of dropping the baby. ( Id.) Gelin further stated that on May 24, Victoria " reportedly became excessively alarmed when the baby sneezed." ( Id.) Due to Gelin's observations of Victoria, her contacts with CIL, and Victoria's interactions with the baby, Gelin was " concerned about Victoria's ability to adequately care for this infant upon discharge" and another CPS referral was made. ( Id.) This referral was accepted and a report was registered at the State Central Registry (" SCR" ).

On May 25, 2005, caseworker Lisa Crofton was assigned to investigate the SCR report, which alleged that Victoria was unable or unwilling to provide sufficient

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supervision for her baby. (Defs. 56.1 ¶ 24; Pls. 56.1 ¶ 24; see Crofton Aff. Ex. A (" SCR Report" ).) The report narrative stated that " [s]ince the birth, mother has been exhibiting inappropriate behavior while with the child" and that in two instances, Victoria panicked while with the child. ( Id.) The report further stated that the " medical opinion" is that " the mother's inappropriate behavior towards the child is rendering her incapable of providing adequate care for the child." ( Id.)

That same day, Crofton made a phone call to the reporting party[6] and verified the allegations in the report. (Defs. 56.1 ¶ 25; Pls. 56.1 ¶ 25; Crofton Aff. ¶ 4 n.1.). The reporting party stated that the CIL case manager expressed a concern to the reporting party that she had observed Victoria display erratic behavior and become easily agitated. ( Id.). The reporting party noted that although this behavior was not observed while Victoria was hospitalized, she was taking medications at that time. ( Id.) Later that day and the next day, Crofton made unscheduled home visits to Victoria's residence, but there was no response. (Defs. 56.1 ¶ 26; Pls. 56.1 ¶ 26; Crofton Aff. ¶ 5.). Crofton called Victoria's mother, who stated that Victoria had been staying with her while she recovered from her cesarean section. (Defs. 56.1 ¶ 28; Crofton Aff. ¶ 7.) Plaintiffs assert that during this phone call, Linda Schweitzer told Crofton that Victoria was staying with her parents following her discharge from Stony Brook Hospital and would stay with her parents for some time. (Pls. 56.1 ¶ 28; LS. Aff. 16.) Plaintiffs further assert that Linda Schweitzer told Crofton that Victoria could be brought to her own apartment later that day for a meeting. ( Id.) Linda Schweitzer then put Victoria on the line, and Crofton informed Victoria of the CPS report filed against her and the need to conduct an investigation. (Defs. 56.1 ¶ 29; Pls. 56.1 ¶ 29; Crofton Aff. ¶ 8.)

On May 26, 2005, Crofton met with Victoria at Victoria's home. Crofton observed that the home was clean and neatly maintained and there was a sufficient food supply. (Defs. 56.1¶ 30; Pls. 56.1 ¶ 30; Crofton Aff. ¶ 9.) Although there was no baby formula in the home, Victoria stated that she planned to purchase formula before the baby was discharged from the hospital. ( Id.) Crofton observed that Victoria had difficulty climbing the stairs and sitting up comfortably. ( Id.) Crofton shared the allegations of the SCR report with Victoria, and Victoria denied acting inappropriately or panicking. (Defs. 56.1 ¶ ¶ 31-32; Pls. 56.1 ¶ ¶ 31-32.). Victoria stated that the ACT team, CIL, and her parents would provide support to her. (Defs. 56.1 ¶ 32; Pls. 56.1 ¶ 32; Crofton Aff. ¶ 11.) According to Crofton, Victoria stated that once the baby was discharged from the hospital, Victoria's mother would visit but would not be staying in Victoria's home. (Defs. 56.1 ¶ 32; Crofton Aff. ¶ 11.) Plaintiffs dispute this statement " to the extent that the statement implies that Victoria Schweitzer intended to convey that Victoria and infant [J.S.] would immediately move to Victoria's apartment upon discharge of [J.S.] as Victoria was to live with her parents while she recuperated from medical problems arising out of her delivery." (Pls. 56.1 ¶ 32; LS Aff. ¶ 16.)

Crofton also spoke with Denise Duncan, a CIL employee, and Lunde. (Defs. 56.1 ¶ 34; Pls. 56.1 ¶ 34; Crofton Aff. ¶ 13.) According to Lunde, CIL questioned Victoria's ability to care for the infant because she sleeps heavily due to her medications, and she may have difficulty moving the infant up and down the stairs. (Defs. 56.1 ¶ 34; Pls. 56.1

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¶ 34; Crofton Aff. ¶ 13.) CIL staff told Crofton that their case manager only visited once each week for an hour and that they preferred for the grandparents to stay with Victoria at her home for a week before allowing the baby to live alone with Victoria. (Defs. 56.1 ¶ 34; Pls. 56.1 ¶ 34; Crofton Aff. ¶ 13.) Lunde stated that she knew the grandparents were thinking of visiting Victoria during the day but did not plan to stay at night. (Defs. 56.1 ¶ 34; Pls. 56.1 ¶ 34; Crofton Aff. ¶ 13) In Lunde's opinion, when Victoria decompensated[7] and when her medications were reduced at the beginning of her pregnancy, she would not have been able to care for the baby. (Defs. 56.1 ¶ 34; Pls. 56.1 ¶ 34; Crofton Aff. ¶ 13) Lunde expressed concern that, if the hospital discharged the baby over Memorial Day weekend, a CIL worker would not be able to visit Victoria until after the holiday weekend. (Defs. 56.1 ¶ 34; Pls. 56.1 ¶ 34; Crofton Aff. ¶ 13.)

Crofton then spoke with Dr. Shariff at the Stony Brook Hospital neonatal intensive care unit. (Defs. 56.1 ¶ 35; Pls. ¶ 35; Crofton Aff. ¶ 14.) He stated that the hospital was waiting for CPS clearance before discharging the baby. (Defs. 56.1 ¶ 35; Pls. ¶ 35; Crofton Aff. ¶ 14.) Dr. Shariff expressed concern for Victoria's ability to care for the baby and the quality of daily care the baby would receive. (Defs. 56.1 ¶ 35; Pls. ¶ 35; Crofton Aff. ¶ 14.) On May 27, 2005, Crofton spoke with ACT team nurse Rada Vukcevic, who had knowledge of Victoria's psychiatric history. (Defs. 56.1 ¶ 36; Pls. 56.1 ¶ 36; Crofton Aff. ¶ 15.) Vukcevic stated she was " very concerned" for Victoria's ability to care for her baby. (Defs. 56.1 ¶ 36; Pls. 56.1 ¶ 36; Crofton Aff. ¶ 15.) She explained that Victoria was on Zyprexa for her bi-polar disorder and that she was currently on 10 mg but had previously been on 20 mg. (Defs. 56.1 ¶ 36; Pls. 56.1 ¶ 36; Crofton Aff. ¶ 15.) Victoria wanted to remain on 10 mg while caring for the baby because she was afraid she may not hear the baby if she were to take a higher dosage. (Defs. 56.1 ¶ 36; Pls. 56.1 ¶ 36; Crofton Aff. ¶ 15.) Vukcevic stated Victoria did better on 15 to 20 mg of Zyprexa and that she was not certain Victoria would be stable on 10 mg. (Defs. 56.1 ¶ ¶ 36-37; Pls. 56.1 ¶ ¶ 36-37; Crofton Aff. ¶ 16.) She stated that Victoria was easily agitated. (Defs. 56.1 ¶ ¶ 37; Pls. 56.1 ¶ ¶ 37; Crofton Aff. ¶ 16.). She also stated that although the ACT team could provide intensive visits, Victoria did not respond well to unscheduled visits. (Defs. 56.1 ¶ 37; Pls. 56.1 ¶ 37; Crofton Aff. ¶ 16.) She told Crofton that Victoria did not deal well with her parents and that Victoria did not like them giving her orders. (Defs. 56.1 ¶ 37; Pls. 56.1 ¶ 37; Crofton Aff. ¶ 16.)

At around four in the afternoon on May 27, after speaking with all of Victoria's caseworkers, Crofton met with Hogan, her supervisor, to discuss the case. (Defs. 56.1 ¶ 38; Pls. 56.1 ¶ 38; Crofton Aff. ¶ 17.) Hogan determined that the baby should be removed on an emergency basis, when she was ready to be discharged from the hospital. (Defs. 56.1 ¶ 39; Pls. 56.1 ¶ 39; Hogan Aff. ¶ ¶ 3-4.) According to Hogan, she authorized the removal based on the fact ...

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