Rodriguez ex rel. Kelly v. McLoughlin

• Citation: 49 F.Supp.2d 186
• Decision Date: 08 January 1999
• Docket Number: No. 96 Civ.1986(KMW).,96 Civ.1986(KMW).
• Parties: Sylvia RODRIGUEZ, individually and on behalf of her minor child, Les Andrew Kelly, Plaintiffs, 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, Cardinal McCloskey Children's and Family Services, New York City Department of Social Services, New York City Child Welfare Administration, and the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

49 F.Supp.2d 186

Sylvia RODRIGUEZ, individually and on behalf of her minor child, Les Andrew Kelly, Plaintiffs, 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, Cardinal McCloskey Children's and Family Services, New York City Department of Social Services, New York City Child Welfare Administration, and the City of New York, Defendants.

No. 96 Civ.1986(KMW).

United States District Court, S.D. New York.

January 8, 1999.

COPYRIGHT MATERIAL OMITTED

Howard Seife, Elyse C. Pepper, Winston & Strawn, New York, NY, for Plaintiff.

Eleanor N. Flach, Capriano Lichtman & Flach, New York, NY, for Defendants Barbara McMurray, Cardinal McCloskey Children's and Family Services, Marjorie McLoughlin, Barbara McMurray.

Frances Sands, Paul A. Crotty, Corporation Counsel of the City of New York, New York, NY, for Defendants New York Dept. of Social Services, New York City Child Welfare Admin., City of New York.

AMENDED OPINION and ORDER

KIMBA M. WOOD, District Judge.

This action arises out of Cardinal McCloskey Children's and Family Services's ("McCloskey") removal of a former foster child, Les Andrew Kelly ("Andrew"), on an alleged emergency basis from the home of his former foster, now adoptive, mother, Sylvia Rodriguez, on March 18, 1994. Sylvia Rodriguez, individually and on behalf of her son Andrew, alleges under 42 U.S.C. § 1983 that the removal of Andrew violated their right to procedural due process guaranteed by the Due Process Clause of the Fourteenth Amendment because (1) the circumstances of Ms. Rodriguez's foster children, Andrew and his foster brother Thomas Green, on March 18, 1994 did not justify an emergency removal, and therefore she was entitled to notice and an opportunity to be heard prior to their removal, (2) Ms. Rodriguez was not provided with either adequate post-removal notice or opportunity to be heard to contest the removal, and (3) Ms. Rodriguez was not provided an adequate opportunity to be heard to contest the denial of her request to visit Andrew. Defendants move to dismiss the complaint with prejudice, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Defendants' motion presents the Court with a series of novel and difficult questions concerning the scope and character of the procedural protections of the Due Process Clause of the Fourteenth Amendment in the context of an alleged emergency removal of a child from a New York foster mother who was in the final stages of adopting her foster child, whom she had cared for continuously since his first weeks of infancy. As explained in the discussion below, the Court holds that there is a constitutionally protected liberty interest in the stability and integrity of the relationship between such a foster mother and foster child. Further, the Court also holds that the delay in providing Ms. Rodriguez with notice and an opportunity to be heard to contest (1) the removal and (2) the denial of Ms. Rodriguez's request to visit Andrew for approximately three months following the removal violated the Due Process Clause's fundamental requirement that an aggrieved party be provided with an opportunity to be heard "`at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)); see Brock v. Roadway Express, 481 U.S. 252, 261, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987) (quoting same). However, the Court grants defendants' motion, which it treats as a motion for summary judgment, as to plaintiff's claims that there was no basis for emergency removal.

Finally, the Court hereby vacates its earlier Order of September 15, 1998 in this case solely as to its decision to grant the individual defendants qualified immunity.

I. Background

To address Ms. Rodriguez's constitutional claims, it is necessary to understand the circumstances of Ms. Rodriguez's foster care relationship with Andrew from its inception through Andrew's return to Ms. Rodriguez's care subsequent to his removal on March 18, 1994. Except as otherwise noted, the Court finds there is no genuine issue as to these facts.

Andrew was born on March 15, 1990; his biological mother abandoned him immediately following his birth. Thirteen days after his birth, McCloskey, the authorized foster care agency for the City of New York, placed Andrew in the certified foster home of Ms. Rodriguez pursuant to a foster family agreement between McCloskey and Ms. Rodriguez. Andrew lived continuously with Ms. Rodriguez for his first four years until McCloskey removed Andrew from Ms. Rodriguez's residence on March 18, 1994.

Prior to Andrew's removal, McCloskey caseworkers and administrators viewed Ms. Rodriguez as an affectionate and caring foster parent who consistently provided for Andrew's basic needs. Venton Monplaisir, the McCloskey caseworker responsible for Andrew's case through March 18, 1994, observed that a strong bond had formed between Ms. Rodriguez and Andrew, that Ms. Rodriguez ably provided for his needs, and that Andrew called Ms. Rodriguez "Mommy" and depended on her as such. McCloskey case worker notes reveal that Andrew had limited contact with his biological mother, meeting her only a few times in his first three years. By January 21, 1992, McCloskey had determined that it would not be in Andrew's best interest to return to his biological mother, and that the permanent goal for Andrew was adoption. By that time, McCloskey considered Ms. Rodriguez as a possible adoptive parent for Andrew. Mr. Monplaisir believed that adoption by Ms. Rodriguez was a good option for Andrew. In McCloskey's October 26, 1993 Annual Recertification Study for Ms. Rodriguez, McCloskey noted that there was "very little chance of abuse or neglect; foster mother knows the dangers and will not subject the children consciously." (Pl. Exh. 29 at CM 01225.) The report also noted that Ms. Rodriguez "has available resources of neighbors and family members, however, she must be willing to trust people and be more positive," and "recommend[ed] that she test her neighbors so that she could use them to baby sit more often." (Id. at CM 01228.)

A family court order dated June 25, 1993 terminated Andrew's biological mother's parental rights; legal custody over Andrew was then transferred to McCloskey. On August 9, 1993, Ms. Rodriguez and McCloskey entered into an Adoptive Placement Agreement. In November 1993, McCloskey reported to the New York Child Welfare Administration ("CWA"), that its new goal for Andrew was to finalize Ms. Rodriguez's adoption. All the paperwork involved in Ms. Rodriguez's adoption application was filed before the March 18, 1994 removal from her home; McCloskey reported to CWA that at the time of his removal, McCloskey was awaiting the conclusion of the adoption finalization process.

On March 18, 1994, Ms. Rodriguez was the foster mother not only for Andrew, but also for Thomas Green, who was then three years old. Ms. Rodriguez's grandson, Edwin Rodriguez, was also living with her. Edwin was twelve years old on March 18, 1994 and a student in special education at P.S. 75 in Queens. On March 18, 1994, when Mr. Monplaisir arrived at Ms. Rodriquez's home for a scheduled visit, he found only Edwin supervising Andrew and Thomas. Mr. Monplaisir, the only direct witness to the state in which he found Edwin, Andrew, and Thomas testified at deposition:

I believe Les Andrew Kelly answered the door. Thomas Green, Andrew Kelly and Edwin, who is alleged to be her grandson, was at home. Ms. Rodriguez was not in that house.... I did have a concern, and I questioned [Edwin] on why he wasn't in school that day. And I was there for some time, and my question was who are you here with or who's supervising the kids. He appeared to be having some difficulty managing the two kids there on his own, and he had said something about someone next door or someone across the hall looking after them or something, but they weren't in the home the entire time that I was there.

So I did go over to the neighbor's apartment and questioned them in terms of if they were, indeed, babysitting or watching after the kids ... one person told me something about well, they can always knock on my door if it's an emergency ... [E]ven after I questioned them, no one took the initiative to come over to the apartment, because that was the question at hand[.][B]ut then there was another individual, a young lady in that home who seemed at to be pretty concerned that questioned me if Ms. Rodriguez would get in trouble for the kids being left alone. But then still no one ... no one took the responsibility of coming back over to the apartment to stay with the children. So, as a result, I ended up staying at the apartment.

Then Ms. Rodriguez's daughter came by while I was there. So I kind of figured well, I'd ask her maybe she's going to supervise the children there, but she wasn't concerned about staying there. She was just coming to get something and to get out. She had some appointment somewhere else.

And then once again, the kids are running all over the place, and I could see that Edwin was having [a] difficult time managing them, during the time I was there. I mean I noticed he did try to ... put something together for them to eat. And I felt he was in a really bad situation because I felt a little overwhelmed, and then at one point I believe when I was walking around the apartment, both Andrew Kelly and Thomas Green ran out in the hallway, making — yelling, laughing, whatever. When I finally notice they weren't in the apartment, when I ran out in the hallway, they were right at the top of...