214 F.3d 328 (2nd Cir. 2000), 99-7020, Rodriguez v McLoughlin

Docket Nº:Docket Nos. 99-7020(L), 99-7039(CON), 99-7089(CON)
Citation:214 F.3d 328
Party Name:SYLVIA RODRIGUEZ, individually and on behalf of her minor child, LES ANDREW KELLY, Plaintiffs-Appellees, v. MARJORIE McLOUGHLIN, individually and as Executive Director of Cardinal McCloskey Children's and Family Services, BARBARA McMURRAY, individually and as Foster Boarding Home Director of Cardinal McCloskey Children's and Family Services, CARDIN
Case Date:June 05, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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214 F.3d 328 (2nd Cir. 2000)

SYLVIA RODRIGUEZ, individually and on behalf of her minor child, LES ANDREW KELLY, Plaintiffs-Appellees,


MARJORIE McLOUGHLIN, individually and as Executive Director of Cardinal McCloskey Children's and Family Services, BARBARA McMURRAY, individually and as Foster Boarding Home Director of Cardinal McCloskey Children's and Family Services, CARDINAL McCLOSKEY CHILDREN'S AND FAMILY SERVICES, Defendants-Cross-Claimants-Appellants,


Docket Nos. 99-7020(L), 99-7039(CON), 99-7089(CON)

United States Court of Appeals, Second Circuit

June 5, 2000

Argued: September 23, 1999

Appeals by private agency and municipal defendants from a judgment of the United States District Court for the Southern District of New York, Kimba M. Wood, Judge, awarding plaintiffs $40,001 against the agency and $10,001 against the municipal defendants for due process violations with respect to removal of foster child from the home of plaintiff foster mother. Appeal by individual defendants from an order denying them qualified immunity. See 49 F.Supp.2d 186 (1999).


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JONATHAN M. SOBEL, New York, New York (Howard Seife, Romy Berk, Chadbourne & Parke, New York, New York, on the brief), for Plaintiffs-Appellees.

CHRISTOPHER H. CLOUD, New York, New York (Kenneth J. Gormley, Capriano Lichtman & Flach, New York, New York, on the brief), for Defendants-Cross-Claimants-Appellants

ALAN G. KRAMS, New York, New York (Jeffrey D. Friedlander, First Assistant Corporation Counsel of the City of New York, Leonard Koerner, Kristin M. Helmers, New York, New York, on the brief), for Defendants-Cross-Defendants-Appellants.

Before: WINTER, Chief Judge, KEARSE, Circuit Judge, and MORDUE, District Judge [*].

KEARSE, Circuit Judge:

Defendant Cardinal McCloskey Children's and Family Services ("McCloskey" or the "agency"), and defendants City of New York, New York City Child Welfare Administration ("CWA"), and New York City Department of Social Services (collectively

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"the City" or "the City defendants") appeal from a partial final judgment entered in the United States District Court for the Southern District of New York, Kimba M. Wood, Judge, following a jury verdict awarding plaintiff Sylvia Rodriguez, suing individually and on behalf of her adopted minor child Les Andrew Kelly ("Andrew"), a total of $40,001 in compensatory, punitive, and nominal damages against McCloskey, and a total of $10,001 in compensatory and nominal damages against the City, for due process violations found by the court in connection with the temporary removal of Andrew from Rodriguez's home when he was her foster child. Defendants Marjorie McLoughlin and Barbara McMurray, employees of McCloskey who were not parties to the trial, appeal from an order of the district court ruling that they are not entitled to qualified immunity on the claims asserted by Rodriguez.

On appeal, all defendants contend principally that the district court erred in ruling that plaintiffs have a cognizable liberty interest. McCloskey and the individual defendants also contend, inter alia, that plaintiffs, even if they had such an interest, were not denied procedural due process; and the individual defendants pursue their defense of qualified immunity. For the reasons that follow, we conclude that Rodriguez and Andrew did not possess a liberty interest in their foster-parent-and-child relationship, and we therefore reverse the judgment and order of the district court and remand for dismissal of the complaint.


Andrew, whose father is unknown, was born on March 15, 1990, to a mother who promptly abandoned him. Thirteen days later, McCloskey, an authorized foster care agency for the City, placed Andrew in the home of Rodriguez. Rodriguez soon expressed an interest in adopting Andrew.

A. The Planned Adoption

Andrew had limited contact with his biological mother, and McCloskey determined that his best interests would be served by adoption. In June 1993, a family court order terminated Andrew's natural mother's parental rights and transferred legal guardianship and custody to McCloskey and the City.

In August 1993, Rodriguez and McCloskey entered into a one-page standard New York State form agreement ("Adoptive Placement Agreement" or "Agreement") in contemplation of Andrew's adoption by Rodriguez. In the agreement, Rodriguez agreed to "receive" Andrew in her home, and "[i]n so doing ... agree[d] that":

We will care for this child and meet the child's needs. However, the child will, where eligible, continue to receive medical, psychological, and surgical services in accordance with the medical assistance or medical subsidy programs to the extent permitted by law.

We are taking this child with the intention of adoption although we understand that legal custody remains with Card. McCloskey and that this adoptive placement agreement remains in effect until the date of legal adoption.

The legal adoption will take place after both Card. McCloskey and we agree that it is in the child's best interest.

In the period prior to legal adoption a representative from Card. McCloskey will visit us and the child periodically and that we may call on the agency for consultation.

If at any time prior to legal adoption it is determined by the agency or by us that the child should be removed from our home, we will cooperate with the agency in carrying this out in a way that serves the best interest of the child in the judgement of the agency.

It is duly acknowledged by the parties hereto that the adoptive parent(s) shall have the right to intervene as an interested party in any proceeding commenced to set aside a surrender purporting to commit a guardianship or custody of a child placed in the home of the adoptive parent(s). Such intervention

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shall be made anonymously or in the true name(s) of the above.

(Adoptive Placement Agreement dated August 9, 1993.)

In November 1993, a McCloskey case planner reported to CWA that McCloskey intended to finalize Andrew's adoption by Rodriguez, noting that the agency was awaiting a court date for finalization. By March 1994, most of the paperwork required for the adoption had been processed. However, a special adoption subsidy had yet to be approved, and according to the deposition testimony of the McCloskey employee who handled the adoption, the adoption application would not be submitted to the court without the subsidy approval because without it the court would not act.

B. The Events Leading to This Action

On March 18, 1994, McCloskey case planner Venton Monplaisir went to Rodriguez's home for a scheduled visit. Rodriguez, attending a court appointment, was not at home. Andrew, then four years old, and Thomas Green ("Thomas"), Rodriguez's other foster child, who was three years old, were at home, tended only by Rodriguez's grandson Edwin Rodriguez ("Edwin"), a twelve-year-old emotionally handicapped, special-education student. Monplaisir observed that Edwin appeared to be having difficulty managing Andrew and Thomas, and indeed appeared to be overwhelmed by them. At one point, Andrew and Thomas ran out of the apartment and down the hallway, causing Monplaisir to fear that they might tumble down the stairs. Although Rodriguez maintains that she had arranged for a neighbor to baby-sit, it is undisputed that no adult arrived to take responsibility during the time that Monplaisir was there.

After approximately two hours, Monplaisir contacted his supervisor at McCloskey and was instructed to remove Andrew and Thomas from Rodriguez's home, which he did. Andrew and Thomas were then transferred to a new foster home. McCloskey filed a Report of Suspected Child Abuse or Maltreatment with the New York State ("State") Department of Social Services ("State DSS"), which in turn triggered an investigation by CWA's Office of Confidential Investigations ("OCI"). On the day Andrew was removed, Rodriguez telephoned McCloskey with regard to his return and was told that there would have to be an investigation. On April 1, Rodriguez requested an independent review by CWA of McCloskey's decision to remove Andrew, and a "fair hearing" before the State DSS pursuant to N.Y. Comp. Codes R. & Regs. tit. 18, §443.5(c) (1999).

While the matter was being investigated, Rodriguez sought to visit Andrew. McCloskey denied permission pending its evaluation of whether visitation would be in Andrew's best interests while the OCI investigation was ongoing. McCloskey did not allow a visit until June 27, when Rodriguez was allowed to see Andrew for half an hour; she was allowed another visit of similar duration on July 8.

In the meantime, on April 19, 1994, OCI determined that McCloskey's view that the events of March 18 constituted child maltreatment should be rejected. It found that there was "no credible evidence to substantiate" that view, although it recommended that Rodriguez receive training in providing proper supervision for children. OCI sent its report to McCloskey on June 20. McCloskey disagreed with OCI's determination, however, and refused to return Andrew to Rodriguez pending the outcome of the independent review by CWA.

Thereafter, CWA, in its Decision After Independent Review dated July 11, 1994 ("CWA Decision"), ordered McCloskey to return Andrew to Rodriguez. CWA stated that the March 18 removal "may be considered arguably valid" (CWA Decision at 9); but it concluded that the ensuing denial of visitation was "very questionable since neither Mrs. Rodriguez nor ... Andrew...

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