Bruker v. City of New York, 93 Civ. 3848 MGC.

• Citation: 337 F.Supp.2d 539
• Decision Date: 29 September 2004
• Docket Number: No. 93 Civ. 3848 MGC.,93 Civ. 3848 MGC.
• Parties: Stephanie BRUKER, Plaintiff, v. CITY OF NEW YORK; New York City Department of Social Services/Human Resources Administration/Child Welfare Administration, currently operating as Administration of Children's Services; Robert Little, in his individual capacity and in his official capacity as Commissioner of the New York City Child Welfare Administration; Dolores Perry, in her individual capacity and in her official capacity as a caseworker for the New York City Child Welfare Administration; and Father Flannagan's Boystown, New York, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 539

337 F.Supp.2d 539

Stephanie BRUKER, Plaintiff, v. CITY OF NEW YORK; New York City Department of Social Services/Human Resources Administration/Child Welfare Administration, currently operating as Administration of Children's Services; Robert Little, in his individual capacity and in his official capacity as Commissioner of the New York City Child Welfare Administration; Dolores Perry, in her individual capacity and in her official capacity as a caseworker for the New York City Child Welfare Administration; and Father Flannagan's Boystown, New York, Defendants.

No. 93 Civ. 3848 MGC.

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

September 29, 2004.

COPYRIGHT MATERIAL OMITTED

Barry, McTiernan & Moore, by Suzanne M. Halbardier, New York City, for Municipal Defendants.

Morris, Duffy, Alonso & Faley, LLP, by Yolanda L. Himmelberger, New York City, for Defendant Father Flannagan's Boystown.

Stephanie Bruker, Hastings, NY, Plaintiff pro se.

OPINION

CEDARBAUM, District Judge.

Defendants the City of New York, the City of New York Department of Social Services, Human Resources Administration ("HRA"), Child Welfare Administration ("CWA"),¹ Robert Little, sued in his official capacity as Commissioner of the CWA and in his personal capacity,² Dolores Perry, sued in her official capacity as a CWA caseworker and in her personal capacity (collectively, "the municipal defendants"), and Father Flanagan's Boystown ("Boystown") move for summary judgment on plaintiff Stephanie Bruker's second amended complaint. Bruker moves for partial summary judgment and for several other forms of relief. The complaint alleges that defendants violated Bruker's free exercise right under the First Amendment when they placed her daughter Elianne in foster care with deliberate disregard for the fact that mother and daughter were Jewish. The complaint also alleges other violations of federal and state law. Bruker has raised issues of fact with respect to whether defendants Perry and Boystown made reasonable efforts to accommodate Elianne's religious upbringing. However, Bruker has failed to show that the remaining defendants can be held liable for the actions of these defendants, or that any defendant is responsible for the other alleged violations of Bruker's rights. Accordingly, Bruker's motion for summary judgment is denied, and defendants' motions are granted in part and denied in part, for the reasons which follow.

BACKGROUND

I. Procedural History

Bruker commenced this action on June 8, 1993. She filed the original complaint in her own behalf and in behalf of her minor children, Elizabeth-Ann Marcovitz ("Elianne"), born June 5, 1978, and Allison Natalie Marcovitz ("Allison"), born November 11, 1976. The complaint named the municipal defendants as well as the Catholic Home Bureau ("CHB"), a private foster care agency. The case was placed on the suspense docket at plaintiff's request on January 20, 1994. On June 5, 1998, the case was restored to active status. Bruker filed an amended complaint on June 1, 1999. Because her daughters had become adults, the amended complaint asserted only Bruker's claims. Bruker added several defendants: Mayor Rudolph Giuliani; Deputy Mayor John Dyson; Marva Livingston Hammons, Commissioner of the HRA; Katherine Kroft, Executive Deputy Commissioner of the HRA; and Boystown.

All of the defendants except Boystown moved to dismiss the amended complaint. That motion was granted in part and denied in part in an opinion dated March 31, 2000. See Bruker v. City of New York, 92 F.Supp.2d 257 (S.D.N.Y.2000). The complaint was dismissed against Giuliani, Dyson, Hammons, Kroft, and the CHB, and dismissed in part against the remaining defendants.

After discovery, Bruker sought leave to file a second amended complaint in order to add a substantive due process claim and claims of tortious interference with custody, fraudulent concealment, and the "tort of outrage." Magistrate Judge Pitman, to whom the case had been referred, denied plaintiff leave to add these claims in an opinion and order dated January 31, 2003. See Bruker v. City of New York, 93 Civ. 3848, 2003 WL 256801 (S.D.N.Y. Feb. 4, 2003). However, he permitted her to amend the complaint to add facts learned in discovery and to replead the outrage claim (which he construed as a claim of intentional infliction of emotional distress) with greater particularity.

Bruker filed a second amended complaint on February 10, 2003. Defendants move for summary judgment on the following counts:³

Counts Three and Four allege that defendants willfully placed Elianne in a non-Jewish home, failed to supervise Elianne's religious practices there, and failed to transfer her to a Jewish home. While Bruker articulates these as separate claims of violation of her free exercise and substantive due process rights under the Constitution, they are based on the same actions and will be analyzed as a single free exercise claim.

Count Five alleges that defendants violated Bruker's substantive due process right to family privacy and confidentiality by publicizing the neglect petition filed against her to the media and to Elianne's attorney.

Count Six alleges that the municipal defendants violated Bruker's procedural due process right by failing to give her a hearing before removing Elianne from her custody. This claim survived defendants' motion to dismiss, but was limited to a claim of injury to plaintiff's liberty interest occurring in the period between Elianne's removal and the post-deprivation hearing which plaintiff received. Bruker, 92 F.Supp.2d at 267.

Bruker also contends that defendants are liable for intentional infliction of emotional distress, negligence, gross negligence, negligent supervision, negligent training, and negligent hiring.

II. Facts

Following are the facts which defendants offer in support of their motions for summary judgment. Evidence offered by Bruker, and Bruker's objections to defendants' evidence, are included where relevant.

Sometime before March of 1992, Bruker and her two adopted daughters, Allison and Elianne Marcovitz, moved from their native Canada to the Bronx. Between March and May of 1992, three Reports of Suspected Child Abuse or Maltreatment were filed with the New York Central Register of Child Abuse and Maltreatment.⁴ A CWA caseworker, defendant Perry, was assigned to investigate. In the course of the investigation, Perry spoke with Elianne, but never with Allison. She attempted to speak with Bruker, but Bruker said that she would speak with the CWA after she returned from a trip with Allison to Canada. Perry's notes indicate that CWA caseworkers spoke with the girls' psychiatrists, a friend of the family, and the sources of the reports.

At the end of April, Bruker agreed to voluntarily place Allison, in foster care. She stipulated, in the Voluntary Placement Agreement she signed, that Allison was to be placed in a foster home only through Jewish Child Care ("JCC"), a Jewish foster care agency.⁵

After the third report was filed, Perry met with Elianne and observed scratches and slight bruises on her. Elianne told Perry she was trying to work things out with her mother and that she did not feel that she was in danger. On May 26, Allison was hospitalized after attempting suicide. That same day, Perry sought legal assistance in order to file a neglect petition.

On June 5, 1992, the CWA filed two petitions in the Family Court. The petitions recounted the three abuse reports and Allison's attempted suicide, and sought the protection of the court for the children. Judge Cira Martinez signed an order placing the children in the custody of the CWA. However, neither child was removed from Bruker's custody at that time.

Elianne and Bruker appeared in court on June 9, 1992. Elianne stated, through her law guardian, that she did not wish to return home with her mother. Her law guardian proposed that she enter foster care. Bruker's attorney responded as follows:

I see no reason for [Elianne] not to return home, although as she is of age to make her own determination, at this point... I understand that she will make that determination, although I would request a 1028 hearing, and if necessary, we will go forward with that.... I would also let the court know that the child, Elliane [sic], is under psychiatric care. She's in the middle of her exams in school, and that any placement must take that into consideration, that I expect all her examinations shall be taken on time, that she will go to the same school if possible, so that she can finish her semester, and also that she continues under psychiatric care that she's now getting.

After further discussion among the parties, the court remanded both children to the custody of the CWA and ordered that Elianne continue attending her school in the Bronx for the balance of the semester. Specifically, the judge stated: "Remand to C.S.S. ... of Elliane [sic] as well as Allison, pending any other appropriate notifications of voluntary placement. The child Elliane [sic] is ordered to attend Junior High School 141 until completion of the school year."

It is unclear whether defendants sought a Jewish home for Elianne on the day she left her mother's custody. Elianne testified during her deposition that Perry asked her whether she wanted to be placed in a Jewish home and informed her that the CWA was having a difficult time finding one. Elianne told Perry it was not important. But Perry testified in a Family Court hearing that she understood that she was to find Elianne a home in the Bronx so that Elianne could continue to attend her school, and did not learn until the next day that Bruker required a Jewish home for Elianne. This testimony is flatly inconsistent with Perry's deposition testimony, in which she states that she became aware that Bruker required a Jewish foster home for Elianne because Bruker said so in court on June 9.⁶ Finally, there is no question that Perry, as the family's...