Doe v. NY CITY DEPT. OF SOCIAL SERVICES

• Citation: 670 F. Supp. 1145
• Decision Date: 24 September 1987
• Docket Number: No. 86 Civ. 4011 (MJL).,86 Civ. 4011 (MJL).
• Parties: Ricardo DOE, by his next friend Elizabeth JOHANNS; and Richard Roe, by his next friend James T. Ratner, individually and on behalf of all other persons similarly situated, Plaintiffs, v. The NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES; George Gross, individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services; and Eric Brettschneider, individually and as Assistant Administrator of Special Services for Children, Defendants.
• Court: U.S. District Court — Southern District of New York

670 F. Supp. 1145

Ricardo DOE, by his next friend Elizabeth JOHANNS; and Richard Roe, by his next friend James T. Ratner, individually and on behalf of all other persons similarly situated, Plaintiffs, v. The NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES; George Gross, individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services; and Eric Brettschneider, individually and as Assistant Administrator of Special Services for Children, Defendants.

No. 86 Civ. 4011 (MJL).

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

September 24, 1987.

Lenore Gittis, Janet R. Fink, The Legal Aid Society, Juvenile Rights Div., by Rose E. Firestein, Jane M. Sufian, New York City, for plaintiffs.

Peter L. Zimroth, Corp. Counsel of the City of New York by Frederick P. Schaffer, Antonia Levine, Allan M. Schlesinger, Daniel Turbow, Gwyneth Murphy, New York City, for defendants.

MEMORANDUM OPINION AND ORDER

LOWE, District Judge.

This case is about the substantive due process rights of children whose family is the City of New York because their parents either aren't permitted to continue custody or voluntarily surrender it. The children involved in this lawsuit are repeatedly kept in city offices during the day, don't know where they will sleep at night and carry their possessions from place to place in plastic garbage bags. The central legal question for this court's decision is whether the city can constitutionally maintain such a system of overnight foster care "placement" which results in the city's continued ability to remove children from their homes without having other homes for them.

BACKGROUND

PROCEDURAL HISTORY

Named plaintiffs Ricardo Doe and Richard Roe (pseudonyms) are foster care children who have been placed into the custody of the Commissioner (the "Commissioner") of the New York City Department of Social Services ("DSS") by the New York Family Court. On May 20, 1986, plaintiffs brought suit against three defendants: DSS; George Gross ("Gross"), Commissioner of DSS; and Eric Brettschneider ("Brettschneider"), Assistant Administrator of Special Services for Children ("SSC"), a division of DSS (collectively, the "City"). Gross and Brettschneider are sued in their official and individual capacities.

Immediately upon filing their complaint, plaintiffs moved for a preliminary injunction and class certification under Fed.R. Civ.P. Rules 65 and 23(b)(2), respectively (the "First Motion").

Plaintiffs sought to represent:

all children who are in the care and custody of the Commissioner because they are alleged or were adjudicated to have been neglected or abused or to be PINS Persons in Need of Supervision, are alleged to be juvenile delinquents, or were voluntarily placed in foster care, and who have been, are being, or will be held at a field office of SSC without a current placement in a certified, licensed or approved foster family home or in an authorized agency boarding home, group home or public institution for children either past 7:00 p.m. or on more than one day.

(Complaint, ¶ 7). In essence, plaintiffs sued on behalf of children who were regularly held in DSS field offices during the day, transported at night to child care facilities or SSC's office of Emergency Services for Children ("ECS") to sleep, and returned to the field offices the next morning to await another overnight placement.

In their First Motion for injunctive relief, plaintiffs primarily challenged the City's practice of exposing them to repeated "overnights" as a violation of their due process rights under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. Plaintiffs asserted that detention in field offices meant deprivation of proper nutritional, medical and educational supervision, treatment and care. Plaintiffs also contended that the defendants' alleged failure to provide notice to parents, when their children were held in field offices, constituted a violation of their procedural due process rights. Plaintiffs also claimed various violations of New York State's Constitution, laws and regulations.

Plaintiffs sought an order which would (1) require the defendants to develop additional approved foster care settings; (2) limit the amount of time children would spend in field offices waiting for a place to sleep; (3) ensure access to appropriate education; (4) ensure that children are provided with adequate food, recreation, exercise, clean clothing, and supervision; (5) ensure that infants received special care; and (6) require defendants to notify the childrens' parents, law guardian or attorney if they are being held at a field office.

Following plaintiffs' First Motion, this court held a scheduling conference at which plaintiffs' request for expedited discovery was granted and a hearing date scheduled. On June 26, 1986, plaintiffs amended their complaint as of right in order to delete one pendent state claim.

From July 14 through July 18, 1986, the court conducted a hearing on the issue of plaintiffs' entitlement to injunctive relief (the "July Hearing"). Appreciating the need for extensive factual inquiry to resolve that issue and in view of the potentially mandatory nature of the requested relief, the court reserved the task of fashioning a remedy until the entitlement question was resolved.¹

Ten witnesses testified at the preliminary injunction hearing, producing a transcript of more than 700 pages. In addition to the testimony of SSC caseworkers, placement or "allocations" workers, and SSC supervisory or training staff, the court heard testimony from six expert medical or psychiatric specialists who were particularly familiar with the needs of children, the foster care system and, what some have called, the "night-to-night" program. In addition to the testimony, the parties submitted numerous affidavits and the complete court and social services records of fourteen children alleged to be typical of those subjected to repeated overnight placement. At the court's request, plaintiffs also furnished the court with the results of a computer analysis of data obtained during discovery relating to the numbers and characteristics of children who have been frequently placed on an overnight basis.

On the eve of this court's decision on plaintiffs' entitlement to preliminary relief, the parties entered into a "First Interim Stipulation and Order of Settlement" (the "Interim Settlement Agreement"). The Interim Settlement Agreement was approved by this court on July 30, 1986.

With respect to class certification, the parties agreed that the action would proceed as a class action "on behalf of all children in foster care who have had or will have three successive overnight placements or two failed placements within a three-month period." (Interim Settlement Agreement, ¶ 12).

Regarding plaintiffs' application for preliminary relief, the Interim Settlement Agreement provided a short-term solution to the inadequacies of the "night-to-night" program. It called for the improvement of the facilities and services available in SSC field offices. More specifically, the Interim Settlement Agreement addressed the inadequacy of the food, medical care, toilet facilities, outdoor recreation, and education at the field offices as well as nursery space at the Bronx field office. The Interim Settlement Agreement also established a system whereby class members would be referred to a designated SSC employee for review and recommendation as to how a stable placement could be obtained for the child.

The Interim Settlement Agreement further established a procedure and timetable for reaching a second agreement, expected to focus on elimination of the longer-term causes of overnight placements. The parties envisioned a negotiated plan to eliminate the shortage of foster care placements, diagnostic facilities and psychiatric services. The Interim Settlement Agreement stated that if unresolved issues remained regarding such a plan, plaintiffs could "by motion on or before September 15, 1986 submit to the Court questions of defendants' liability and unresolved issues regarding the plan." (Interim Settlement Agreement, ¶ 10(c)).

The parties were not able to agree on a plan for the development of foster care placements. As a result, on September 15, 1986, plaintiff class filed a renewed motion for preliminary injunction (the "Renewed Motion").

In its Renewed Motion, the plaintiff class challenges defendants' practices of: (1) "placing" class members in overnight "placements" on three successive occasions or after a failed placement because an appropriate stable or diagnostic placement was not available, (2) failing to ensure that the children have adequate and clean clothing, and (3) failing to ensure that the children have a daily opportunity to bathe. As was the First Motion, the Renewed Motion is based upon alleged violations of the Due Process Clause of the Constitution's Fourteenth Amendment, 42 U.S.C. § 1983, the New York State Constitution, state statutes and regulations.

Plaintiffs seek a detailed mandatory injunction which, among other things, would require defendants to (1) keep, or encourage voluntary agencies to keep, children in temporary but stable placements (i.e. through the payment of premiums) until a permanent stable placement could be found; (2) produce a foster bed development plan that would obviate the need to place children in overnight "placements" more than three successive times or after a failed placement or to use congregate care for children under ten; (3) provide day care to foster parents of young children; (4) provide out-patient diagnostic services and counseling; and (5) create a computerized vacancy control system.

Through August 24, 1987, the plaintiff class filed a series of affidavits in support of its Renewed Motion. The affidavits reported on the defendants' continued overnight placement practices...