Marisol A. By Next Friend Forbes v. Giuliani, 95 Civ. 10533 (RJW).

Citation929 F. Supp. 662
Decision Date18 June 1996
Docket NumberNo. 95 Civ. 10533 (RJW).,95 Civ. 10533 (RJW).
PartiesMARISOL A., By her Next Friend, Rev. Dr. James Alexander FORBES, Jr.; Lawrence B., by his next friend, Prof. Mitchell I. Ginsberg; Thomas C., by his next friend, Dr. Margaret T. McHugh; Shauna D., by her next friend, Prof. Kathryn Conroy; Ozzie E., by his next friends, Jill Chaifetz and Kim Hawkins; Darren F. and David F., by their next friends, Juan A. Figueroa and Rev. Marvin J. Owens; Bill G. and Victoria G., by their next friend, Sister Dolores Gartanutti; Brandon H., by his next friend, Thomas J. Moloney; and Steven I., by his next friend, Kevin Ryan, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. Rudolph W. GIULIANI, Mayor of the City of New York; Marva Livingston Hammons, Administrator of the Human Resources Administration and Commissioner of the Department of Social Services of the City of New York; Nicholas Scoppetta, Commissioner of the New York City Administration for Children's Services; George E. Pataki, Governor of the State of New York; and Brian J. Wing, Acting Commissioner of the Department of Social Services of the State of New York, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York







Children's Rights, Inc., New York City (Marcia Robinson Lowry, Craig Levine, Mark G. Peters, Rebecca Kim Kimura, Martha Stone, of Counsel), Lawyers For Children, Inc., New York City (Gayle Lerner, Karen Freedman, of Counsel), for Plaintiffs.

Corporation Counsel of the City of New York, New York City, Paul A. Crotty, Corporation Counsel (Grace Goodman, Phyllis Seidman, of Counsel), for City Defendants.

Attorney General of the State of New York, New York City, Dennis C. Vacco, Attorney General (Ronald Younkins, Michael S. Popkin, Steven M. Connolly, of Counsel), for State Defendants.


ROBERT J. WARD, District Judge.

Defendants Rudolph W. Giuliani, Marva Livingston Hammonds, and Nicholas Scoppetta ("City defendants") have moved pursuant to Rule 12(b)(6), Fed.R.Civ.P., for an order dismissing large portions of plaintiffs' complaint filed on December 3, 1995 for failure to state a claim upon which relief can be granted. Defendants George E. Pataki and Brian J. Wing ("State defendants") likewise have moved pursuant to Rule 12(b)(6), Fed. R.Civ.P., for a partial order of dismissal. Plaintiffs have moved, pursuant to Rule 23, Fed.R.Civ.P., for an order certifying this action as a class action. Finally, City defendants have moved for an order bifurcating this action.

For the reasons hereinafter stated, defendants' motions to dismiss are denied to the extent that (1) custodial plaintiffs may pursue their substantive due process claims based upon alleged violations of their right to be free from harm and all plaintiffs may pursue their procedural due process claims based upon alleged violations of various provisions of New York's Child Protective Services laws, codified at Title 6 of Article 6 of the New York Social Services Law; (2) plaintiffs may pursue their federal statutory claims based upon the Adoption Assistance and Child Welfare Act, including the provision herein referred to as the Multiethnic Placement Act, the Child Abuse Prevention and Treatment Act, the Americans with Disabilities Act, and the Rehabilitation Act; and (3) plaintiffs may pursue their state law claims. Further, plaintiffs' motion for class certification is granted. Finally, City defendants' motion to bifurcate this action is denied.


Plaintiffs are eleven children all of whom have suffered, and some of whom continue to be at risk of, severe abuse and neglect. These children allege that defendants, who are officials with responsibility for the Child Welfare Administration of the City of New York ("CWA") now renamed the New York City Administration for Children's Services ("ACS"),1 mishandled plaintiffs' cases and, through defendants' actions or inactions, deprived plaintiffs of their rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution, under Article XVII of the New York State Constitution, as well as under numerous federal and state statutes.

The factual allegations of the complaint portray a child welfare program in crisis and collectively suggest systemic deficiencies of gross proportions. The eleven children who seek to represent the proposed class have endured a wide range of abuses and all reflect the dire situation facing children in the system. In their complaint, the named plaintiffs allege the following facts:

Marisol A. is a five-year old who was born two days after her mother, Ms. A., was arrested on charges of dealing drugs. CWA placed Marisol with Ms. C. during and subsequent to Ms. A.'s incarceration but, in 1994, CWA restored Marisol to her mother's custody despite her criminal history and reports that she was abusing Marisol during visitations. CWA failed to assess properly the appropriateness of this placement and took no steps to supervise or monitor Ms. A.'s home. Upon regaining custody, Ms. A. confined Marisol to a closet for several months, deprived her of sustenance resulting in her eating her own feces and plastic garbage bags to survive, and both physically and sexually abused her to the point of injury. During this period, Ms. A.'s sister and Ms. C. filed multiple reports of abuse with CWA to no avail. A housing inspector familiar with the signs of abuse discovered Marisol during a chance visit and reported the situation to the police. Despite Ms. C.'s eagerness to adopt Marisol, CWA has not begun the process of terminating Ms. A.'s parental rights and has not provided Marisol with counseling or support services.
Lawrence B. died on February 18, 1996 of AIDS-related illness at the age of nineteen.2 Lawrence's mother died of AIDS in or around 1985 leaving him an orphan and he entered the foster care system in 1995, at age seventeen, pursuant to a voluntary agreement signed by his aunt who could no longer care for him. After taking custody, CWA failed to assess Lawrence's medical condition for almost two months and then shuttled him from one inappropriate placement to another. Lawrence first spent seven months in a diagnostic facility and then was transferred to a group home that lacked the medical staff needed to monitor his condition. In fact, CWA neglected even to inform the agency of Lawrence's HIV-positive status. Finally, CWA placed Lawrence in a group home aimed to assist teenagers in making the transition to independent living. CWA again failed to alert that agency to Lawrence's medical condition. Even when the agency notified CWA that Lawrence needed hospice care, CWA suggested that the staff simply take him to the hospital when necessary. Despite his deteriorating health, CWA recommended continued placement in the group home and maintained a goal of independent living in his case plan until his death.
Thomas C. is a fifteen-year old who has been in foster care since he was seven. In those eight years, Thomas endured numerous placements including a hospital, a diagnostic center, and a residential treatment center ("RTC"). In 1993, without adequate investigation, CWA approved Thomas' placement with Rev. D., a minister Thomas met at the RTC, who took him to South Carolina. There Rev. D. sexually abused Thomas who subsequently ran away. In 1994, Thomas was returned to the RTC where he now resides. He has since attempted suicide twice and has run away from the RTC only to return after facing hardship and abuse on the streets. CWA has failed to determine the appropriateness of the RTC placement, to pursue the possibility of adoption, or to provide Thomas with counseling.
Shauna D. is a two-year old who lives with Ms. D., her drug-addicted mother. CWA has failed to investigate reports of suspected abuse despite the fact that Ms. D. has already lost custody of her six other children. In September 1995, Ms. M., a friend who had been caring for Shauna, filed for formal custody. In November 1995, however, Ms. D. forcibly took Shauna from Ms. M.'s home. Despite repeated calls from Shauna's law guardian, her CWA caseworker has failed to investigate adequately reports of abuse or to ensure that Ms. D. is in a drug rehabilitation program.
Ozzie E. is a fourteen-year old who suffers from seizure disorder, brain lesions, and behavioral problems. In 1995, Ozzie's father placed him in foster care after finding himself unable to care for Ozzie. Although Ozzie and his mother, Ms. E., both want to be reunited, he remains in a group home because CWA has failed to provide any family preservation services to enable Ms. E. to care for him. Although CWA acknowledges that the group home is not equipped to address Ozzie's neurological problems, the agency has taken no steps to return Ozzie to his mother.
Darren F. and David F. are seven-year old twins who have been in foster care since they were one. In 1990, CWA placed the twins with their grandmother who was too old to care for them and from whom they were removed after she allowed their drug-addicted mother to live with them. In 1991, CWA placed the twins, who already were evidencing signs of psychological trauma, with Ms. R. who made efforts to address the children's special needs. Despite Ms. R.'s requests, CWA failed to provide the twins with treatment as their behavior deteriorated. Finally, a psychiatrist recommended that, because of their young age, they remain with Ms. R. but enroll in a day treatment center. CWA, however, placed the twins in an inappropriate residential center where they remain today and has risked their chance to be adopted by Ms. R.
Bill G. is a fourteen-year old who is mentally retarded and suffers from a mild form of cerebral palsy. His sister, Victoria G., is ten. In 1985, CWA placed them together in the home of Ms. H. pursuant to a

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