United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
As the Supreme Court has noted, family law is an area of "unusual delicacy" where "professional judgments regarding desirable procedures are constantly and rapidly changing, " and thus, "restraint is appropriate on the part of courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution." Smith v. Org. of Foster Families for Equality & Reform , 431 U.S. 816, 855-56 (1977).
In this case, plaintiff, the administrator of the estate of a deceased kinship foster parent, challenges the constitutionality of the State of New York's procedures regarding the removal of kinship foster children from kinship foster homes. Because of settlements reached over the last year, plaintiff's sole remaining claims in this action are those against John Johnson, the former Commissioner of New York's Office of Children and Family Services, in his individual capacity. Because there is no material dispute of fact preventing this Court from concluding that Johnson was not personally involved in any of the alleged constitutional deprivations or from concluding that Johnson has qualified immunity against plaintiff's claims, and mindful of the delicacy with which federal courts must approach the adjudication of matters touching on domestic relations, the Court DENIES plaintiff's motion for summary judgment and GRANTS defendant's motion for summary judgment.
A. Statutory and Administrative Background
The State of New York's foster care program is administered by New York's Office of Children and Family Services ("OCFS"), which is under the general supervision of its Commissioner. See N.Y. Soc. Serv. L. §§ 371, 383-c(4)(a), 390-a-(5), 390-f. OCFS administers the program through local services districts. N.Y. Soc. Serv. L. § 395. New York City's local services district is the Administration for Children's Services ("ACS"). Finch v. N.Y. State Office of Children & Family Servs. , 499 F.Supp.2d 521 (S.D.N.Y. 2007).
A preference for placing foster children in the care of relatives rather than non-relatives is embodied in New York law. See N.Y. Fam. Ct. Act § 1017(1)-(2)(a). To facilitate the placement of foster children with relatives, New York law exempts the relatives of foster children from certain licensing requirements and provides an expedited process for their approval as foster parents. See N.Y. Soc. Serv. L. § 375; 18 N.Y. Comp. Codes R. & Regs. tit. 18, § 443.7 (2014); Wilder v. Bernstein , 49 F.3d 69, 71 (2d Cir. 1995) ("In 1989, New York State enacted legislation requiring local social service districts to search for suitable and willing relatives with whom a child in need of placement may appropriately reside, and further requiring, if such a relative is found, that the child be placed with that relative." (citations omitted)). Foster children who are placed with relatives are referred to as "kinship foster children"; the relatives with whom the kinship foster children are placed are referred to as "kinship foster parents." Current OCFS removal regulations generally do not differentiate between kinship foster parents and non-kinship foster parents.
A local district may "in its discretion" remove a child from a foster parent's home. N.Y. Soc. Serv. L. §§ 383(2), 400(1). Under OCFS regulations, foster parents must be given two types of notice about their rights when a foster care agency proposes to remove a foster child from their care. First, foster parents must be provided "a statement of a foster parent's rights" in their foster care agreement. 18 N.Y. Comp. Codes R. & Regs. tit. 18, § 443.5(e) (2014). Second, when the removal of a foster child is proposed, at least ten days prior to the proposed removal the foster care agency must provide written notice to the foster parents of their rights, except in emergency situations. Id . § 443.5(a)(1). This written notification must advise the foster parent that they may request a pre-removal conference with the social services official proposing the removal or a designated employee of their local district. Id . § 443.5(a)(2). Before the conference, the official holding the conference must send the foster parent notice of the conference date. Id . § 443.5(b).
The conference must be held within ten days of being requested. Id . At the conference, the foster parents, who may or may not be represented by legal counsel, may be advised of the reasons for the removal, and may contest the removal. Id . § 443.5(a)(2). The official holding the conference must send the foster parent and their representatives a written decision (a "Decision After Conference") within five days. Id . § 443.5(c). The decision must inform the foster parent of their ability to appeal the removal at a fair hearing conducted by OCFS. Id . § 443.5(c). The foster child remains in the kinship foster home until three days after the notice of decision is sent, or prior to the proposed effective date of removal, whichever occurs later. Id . § 443.5(d).
A foster parent who receives an adverse determination at the pre-removal conference may request a post-removal administrative hearing before an OCFS officer who has not been involved in any way with the action in question. Id . §§ 358-5.6(a), 443.5(c) (2014). A foster parent who requests a hearing has the right to: the adjournment of the hearing; be represented by an attorney or other representative; have an interpreter at any hearing at no charge, if the appellant does not speak English or is deaf; appear and participate at the conference and hearing; explain the situation; offer documents as evidence; question witnesses; offer evidence in opposition to the evidence presented by the social services agency and to examine any documents offered by the social services agency; bring witnesses to present written or oral evidence; receive necessary transportation or the reimbursement of transportation expenses, child care costs, and other necessary expenditures related to the hearing; and have the hearing held at a convenient time and place to the extent practicable. Id . § 358-3.4. The hearing officer may also elicit documents and testimony, and may question the parties and witnesses, particularly if it is difficult for the foster parent to question a witness. Id . § 358-5.6(b)(3).
Following the hearing, the OCFS officer prepares a report containing a summary of the hearing and a recommended Decision After Hearing for review by the OCFS Commissioner or the Commissioner's designee. Id . § 358-5.6(b)(9). The Commissioner or their designee then issues the final decision (the "Decision After Hearing"). See N.Y. Soc. Serv. L. § 22(2). A copy of the decision accompanied by written notice of the right to judicial review must be sent to the foster parent. 18 N.Y. Comp. Codes R. & Regs. tit. 18, § 358-6.1(c). If the Decision After Hearing is adverse to the foster parent, they may seek judicial review in New York Supreme Court pursuant to article 78 of the New York Civil Practice Law and Rules. N.Y. Soc. Serv. L. § 22(9)(b).
B. Factual History
Ameena B. ("Ameena") was born in March 2002 to sixteen-year-old mother Charia B., the grand-niece of Alice Haynes ("Ms. Haynes"). (DSOF ¶¶ 1-2; PSOF ¶¶ 2, 10.) On April 28, 2003, ACS took Ameena into its custody, alleging that Ameena's mother had neglected her. (PSOF ¶¶ 16-18.) Ameena was then placed in the care of an unrelated foster parent. (PSOF ¶ 18.) On August 8, 2004, a Family Court judge ordered that Ameena, then two years old, be placed with Ms. Haynes, and on September 24, 2004 she came to live with Ms. Haynes and her two adopted children. (DSOF ¶ 2; PSOF ¶¶ 6-8, 37.)
On or about June 7, 2005, the ACS case worker supervising Ameena's foster care told Ms. Haynes that ACS would be mailing her a 10-day notice regarding the planned non-emergency removal of Ameena from Ms. Haynes's home. (DSOF ¶ 3.) The reason for the removal was an investigation of an allegation that a red mark on Ms. Haynes's daughter's face might have been caused by child abuse. (PSOF ¶ 59.)
Ms. Haynes told the ACS case worker to take Ameena before the period expired so that she could avoid the anxiety that would be caused by a drawn-out removal process. (DSOF ¶ 3.) Ameena was then removed from Ms. Haynes's care on June 10, 2005. (DSOF ¶ 4; PSOF ¶ 72.) Upon removing Ameena, an ACS employee handed Ms. Haynes a form entitled "Notice of Removal, " which stated that Ms. Haynes could request a pre-removal conference. (DSOF ¶¶ 5-6; PSOF ¶¶ 73-74.) Ms. Haynes verbally objected to the removal and refused to sign a document indicating that she had waived the ten-day notice, but did not ask the caseworker not to remove Ameena until after she had requested a pre-removal conference. (See PSOF ¶¶ 69, 75.)
Ms. Haynes requested a pre-removal conference (PSOF ¶ 75), which was held on June 23, 2005 (PSOF ¶ 77; PRSOF ¶ 7). On July 11, 2005, ACS issued a written decision determining that Ameena had been correctly removed. (DSOF ¶ 8; PSOF ¶ 83.)
Sometime between then and early August 2005,  Ms. Haynes requested a post-removal administrative hearing. (SDRSOF ¶ 89; PRSOF ¶ 273; DRSOF ¶ 273.) Her request was stamped as received by OCFS on September 9, 2005. (SDRSOF ¶ 89; PRSOF ¶ 9.) The hearing, which was held by an administrative law judge, commenced on October 27, 2005, but was adjourned because the ACS case worker was not available to testify. (See DSOF ¶¶ 11, 15; SDRSOF ¶¶ 90-91, 95.) When asked whether she objected to an adjournment, Ms. Haynes replied, "[i]t cannot be helped." (PRSOF ¶ 12; Declaration of Robert L. Kraft, ECF No. 119 ex. 1 at 4.) The hearing resumed on November 30, 2005. (DSOF ¶ 15; PSOF ¶ 94.) At the resumed hearing, Ms. Haynes was represented by counsel. (DSOF ¶ 15.)
On February 2, 2006, a designee of the OCFS Commissioner determined that the City's removal of Ameena from Ms. Haynes's care had been arbitrary, capricious, and an abuse of discretion, and he ordered an evaluation of the appropriateness of returning Ameena to Ms. Haynes's home. (DSOF ¶ 18; PSOF ¶¶ 98, 102-03.)
John Johnson was the OCFS Commissioner at the time the above events occurred, as he served as Commissioner from 1998 until November 2006. (DSOF ¶ 19; DRSOF ¶ 210.) As OCFS Commissioner, Johnson was responsible for monitoring local districts for child welfare and foster care. (PSOF ¶ 211; DRSOF ¶ 211.) While Commissioner, Johnson kept informed about legal issues concerning OCFS through executive staff meetings, legislative hearings, OCFS's legal unit, and OCFS's Office of Community Development. (DSOF ¶¶ 21-22.) Johnson participated in developing regulations for foster care hearings (PSOF ¶ 214; DRSOF ¶ 214), but he did not personally sign off on or approve any Decisions After Hearing while serving as Commissioner (PSOF ¶ 29). While Commissioner, Johnson created the Bureau of Special Hearings, which presides over administrative hearings in which foster parents challenge the removal of foster children from their care. (SDRSOF ¶¶ 231-32.)
C. Procedural History
Ms. Haynes filed this action individually and as next friend of Ameena B. on
February 21, 2006, seeking damages, declaratory relief, and injunctive relief for alleged violations of the Constitution and New York law by defendants the City of New York (the "City"), ACS, ACS Commissioner John Mattingly, several employees of ACS, and John Johnson. (ECF No. 1 ("Compl.").) The complaint alleged that defendants illegally seized and detained Ameena from Ms. Haynes without probable cause or due process of law, and that defendants' procedures for the removal of kinship foster children violated the due process rights of kinship foster parents. (Compl. ¶ 1.) Judge Thomas P. Griesa was initially assigned to the case. (ECF No. 7.)
Ms. Haynes filed an amended complaint on March 13, 2006 (ECF No. 6), which Johnson answered on April 14, 2006 (ECF No. 22) and the remaining defendants answered on April 20, 2006 (ECF No. 24). In his answer, Johnson asserted as affirmative defenses, inter alia, ...