Plaintiffs appeal from the order of the Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about March 23, 2011, which granted defendant's motion for summary judgment dismissing the complaint. Appeal from order, same court and Justice, entered August 17, 2011, which denied plaintiffs' motion to renew.
The opinion of the court was delivered by: Acosta, J., J.
Appellate Division, First Department
Wynn v Little Flower Children's Servs.
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.
Decided on March 28, 2013
Angela M. Mazzarelli,J.P. Rolando T. Acosta David B. Saxe Dianne T. Renwick Darcel D. Clark, JJ.
We hold that a child care agency that retains legal authority over a child owes the foster parents a duty to take steps to remove the child where it is placed on sufficient notice by the foster parents that the child is a danger to their household and is asked to remove the child. We find, however, that the record in this case presents an issue of fact as to whether the agency was given the requisite notice. Thus, the agency's motion for summary judgment dismissing the complaint must be denied.
Defendant, Little Flower Children's Services, is a child care agency operating in New York City. In mid-1993, Little Flower placed Glenn G., age 6, and his sister, Shantel G., age 4, in foster care with plaintiff's decedent Elouise Wynn Squire. Elouise lived with her husband, plaintiff's decedent Victor Squire. Elouise entered into a "Foster Parents Agreement" with Little Flower which provided that the agency retained legal custody of Glenn and required Eloise, inter alia, to notify it "immediately" if, for any reason, she could no longer care for Glenn in order to give the agency "as much time as possible" to effect a change in the child's placement.
Little Flower's "Foster Care Program Manual" stated that the agency would not accept for placement children who were "firesetter[s]," because these "characteristics" were outside of the program's intake criteria. The Program Manual provided for "[e]mergency [t]ransfers" of children to other foster homes on account of "emergency situation[s]."
After about a month in Elouise's care, Glenn began presenting behavioral problems, including engaging in sexual behavior with Shantel, disobeying Elouise, and hitting schoolmates. Elouise complained to Little Flower caseworkers about Glenn's behavior during their visits to her home and on visits to Little Flower's office.
According to Elouise's daughter, Teresa, one day in August 1993, while she was caring for Glenn and Shantel in her home, she smelled smoke. She went to the kitchen and saw Glenn setting paper towels on fire, using the stove's burner. Upon seeing Teresa, Glenn threw the paper towels on the floor and ran into another room. Teresa extinguished the flames and called her mother to tell her what had happened.
Teresa testified that Elouise called Warnee Coleman (Glenn's caseworker), and told her what had happened. Teresa was at Elouise's apartment the next day, when Coleman went to visit Elouise. Coleman told Glenn that he was not to play with the stove or matches. Teresa and Elouise then asked Coleman to have Glenn removed from Elouise's home. Coleman responded that the agency would take care of it, but that it took time to find a suitable home.
According to Teresa, not long afterwards, she was present in Elouise's apartment when Glenn started another fire, using matches or a lighter to ignite clothing in a hallway closet. Teresa saw smoke coming from the closet, and she and Elouise poured water on the burning clothing. Elouise called the agency to report what had happened. She later told ...