Mark G. v. Sabol

• Decision Date: 23 June 1998
• Citation: 247 A.D.2d 15,677 N.Y.S.2d 292
• Parties: , 1998 N.Y. Slip Op. 6293, 1998 N.Y. Slip Op. 6294 MARK G., et al., Plaintiffs-Respondents-Appellants, v. Barbara J. SABOL, etc., et al., Defendants-Appellants-Respondents. MARTIN A., et al., Plaintiffs-Appellants-Respondents, v. Barbara J. SABOL, etc., et al., Defendants-Respondents-Appellants. DAKINYA B., etc., et al., Plaintiffs-Appellants-Respondents, v. Barbara J. SABOL, etc., et al., Defendants-Respondents-Appellants. FRANCES F., et al., Plaintiffs-Appellants-Respondents, v. Barbara J. SABOL, etc., et al., Defendants-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 292

677 N.Y.S.2d 292

247 A.D.2d 15, 1998 N.Y. Slip Op. 6293,

1998 N.Y. Slip Op. 6294

MARK G., et al., Plaintiffs-Respondents-Appellants, v. Barbara J. SABOL, etc., et al., Defendants-Appellants-Respondents.

MARTIN A., et al., Plaintiffs-Appellants-Respondents, v. Barbara J. SABOL, etc., et al., Defendants-Respondents-Appellants.

DAKINYA B., etc., et al., Plaintiffs-Appellants-Respondents, v. Barbara J. SABOL, etc., et al., Defendants-Respondents-Appellants.

FRANCES F., et al., Plaintiffs-Appellants-Respondents, v. Barbara J. SABOL, etc., et al., Defendants-Respondents-Appellants.

Supreme Court, Appellate Division,

First Department.

June 23, 1998.

Mark G. Peters, of counsel (Martha Stone, Marcia Robinson Lowry, David Rivkin, Robert Goodman and Robert H. Hotz, Jr., on the brief, Children's Rights, Inc. and Debevoise & Plimpton, attorneys), for plaintiffs.

Fay Ng, of counsel (Pamela Seider Dolgow, on the brief, Paul A. Crotty, attorney), for defendants.

Before SULLIVAN, J.P., and MILONAS, RUBIN, WILLIAMS and ANDRIAS, JJ.

ANDRIAS, Justice.

The principal issue presented is the effect of Federal funding statutes on State social services programs and whether the acceptance by the States of such funding creates an individual right enforceable pursuant to the Civil Rights Act of 1881 as codified in 42 U.S.C. § 1983 for parties aggrieved by failures in such State programs. The answer varies from statute to statute and must be determined by the specific provisions of each statute. All of these statutes are intended to benefit the recipients of the State social services. The determinative question, however, is whether an aggrieved plaintiff is intended to be a direct or indirect beneficiary of such funding.

These cross-appeals arise from four actions brought on behalf of the children in four families who, to varying degrees, are alleged to have been victimized by our foster care system and seek relief against defendants under various theories, including violations of Federal and State child welfare statutes and their rights under the United States and New York constitutions.

The original action was commenced by the A and B families in October 1985. The F and G families served intervening complaints in April 1991 and March 1992, respectively. The Bronx Public Administrator also served an intervening complaint in March 1992 on behalf of the estate of Alan G., who was beaten to death by his father on March 5, 1990.

On a previous appeal, in Martin A v. Gross, 153 A.D.2d 812, 546 N.Y.S.2d 75, we affirmed the grant of a preliminary injunction (138 Misc.2d 212, 524 N.Y.S.2d 121 [Elliott Wilk, J.] ) to ensure compliance by the City defendants with the nondiscretionary requirements of Social Services Law §§ 409-a (1)(a) and 409-e that a plan for the provision of preventive services to avoid unnecessary foster care placement of the affected children be developed within certain mandatory timetables.

Since our decision in Martin A. v. Gross (supra), plaintiffs have withdrawn their request for class certification and all claims for injunctive and declaratory relief. They now seek only monetary damages for the individual plaintiffs.

In four of these cross-appeals, which have been consolidated, plaintiffs appeal the dismissal of virtually all their claims on defendants' motion for partial summary judgment, while defendants cross appeal, seeking dismissal of plaintiffs' remaining claims under Article 4 of the Social Services Law ( §§ 409 et seq.) and Article XVII of the New York State Constitution.

The other cross-appeals, ordered to be heard with the foregoing consolidated cross-appeals, arise from the personal injury and wrongful death claims brought by the Public Administrator on behalf of the estate of Alan G. There, defendants appeal the partial denial of their motion to dismiss such claims on Statute of Limitations grounds, while the Public Administrator cross-appeals to the extent that the claims for wrongful death were dismissed.

Primarily, plaintiffs contend that they are entitled to pursue a private right of action pursuant to the Federal child welfare statutes in issue, the Adoption Assistance and Child Welfare Act of 1980 (AACWA) and the Child Abuse Prevention and Treatment Act (CAPTA), essentially relying upon the interlocutory District Court decisions in Marisol A. v. Giuliani, 929 F.Supp. 662, and Jeanine B. v. Thompson, 877 F.Supp. 1268 ["Jeanine B.I "], and arguing that the authorities relied upon by the City in opposing such claims are the progeny of the legislatively overruled Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1.

When these cross-appeals were originally argued, Suter v. Artist M. (supra), decided in 1992, was the latest in a line of Supreme Court cases, including Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694, Wright v. City of Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781, Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420, and Wilder v. Virginia Hosp. Assn., 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455, which developed a three-pronged test to be applied in determining whether a particular Federal statute creates a "federal right" enforceable pursuant to § 1983. ¹

Suter dealt with a class of children who alleged that the officials in charge of the Illinois foster care system were not making the "reasonable efforts" mandated by § 671(a)(15) of AACWA (42 U.S.C. § 671[a][15] ), which requires participating States to submit a plan which "provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home." The Court, distinguishing the statute and regulations before it from those in Wilder, essentially held that AACWA only requires a State to submit a plan for approval by the Federal agency, but provides no guidance for determining what are "reasonable efforts". Thus, the Court held, § 671(a)(15) does not confer an enforceable right on behalf of its beneficiaries and does not create an implied cause of action on their behalf (id., at 363-364, 112 S.Ct. 1360).

Because Suter did not explain the impact of its analysis on the Wilder test and the dissent characterized it as a departure from Wilder, it appeared to some observers to depart from Wilder in some respects and subsequent courts expressed differing opinions in attempting to reconcile or differentiate Wilder and Suter. In 1994, Congress went so far as to amend the Social Security Act of which AACWA is a part ², suggesting to some that it limited the analysis in Suter to the specific section of AACWA in issue there and that, for any determination of "Federal rights" under any other provisions of AACWA, the courts had to look to pre-Suter precedents for guidance (see, Jeanine B. by Blondis v. Thompson, supra, at 1283).

However, any doubt about the continuing validity of Suter was removed by the Supreme Court's subsequent decision in Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 [decided April 21, 1997], where five Arizona mothers, whose children are eligible for State child-support services under Title IV-D of the Social Security Act, brought suit pursuant to § 1983 against the director of the State child-support agency alleging numerous deficiencies in Arizona's child support enforcement program and seeking declaratory and injunctive relief requiring substantial compliance with the requirements of Title IV-D. In reversing the Ninth Circuit's holding that the five mothers had an enforceable individual right to have the State achieve "substantial compliance" with Title IV-D, the Court (per O'Connor, J.) implicitly reaffirmed the rationale of Suter and unanimously held that "the requirement that a State operate its child support program in 'substantial compliance' with Title IV-D was not intended to benefit individual children and custodial parents, and therefore it does not constitute a Federal right.... In short, the substantial compliance standard is designed simply to trigger penalty provisions that increase the frequency of audits and reduce the State's AFDC grant by a maximum of five percent. As such, it does not give rise to individual rights." (id., 117 S.Ct. at 1361).

We also find persuasive the post-Suter, post-amendment, pre-Blessing decisions of two Federal appeals courts which had occasion to revisit the issue of private rights of action under Federal child welfare statutes and the criteria to be applied in determining whether a particular Federal statute creates an individual right enforceable pursuant to § 1983.

In the first, the Circuit Court of Appeals for the District of Columbia Circuit, using an analysis similar to Blessing, has held in a post-Suter, post-amendment, pre-Blessing decision that an infant plaintiff, who sued the District of Columbia government and two of its employees for damages for injuries she allegedly received in foster care as a result of the defendants' failure to investigate and protect her from abuse and neglect, cannot enforce a provision of CAPTA under § 1983. (Jane Doe by Fein v. District of Columbia, D.C.Cir., 93 F.3d 861). In affirming the dismissal of the identical Federal statutory claim under 42 U.S.C. § 5106a (b)(2) made by plaintiffs here, the Court of Appeals found that the District Court correctly applied the Supreme Court's reasoning in Suter.

Recognizing that although Suter and Wilder both involved statutory schemes and language of similar character and that the Supreme Court in Wilder found an enforceable right, whereas in Suter it did not, the D.C. Circuit followed Suter's lead in distinguishing the language at issue in each case. In Suter, the Supreme Court was careful to point out that the Medicaid legislation at issue in Wilder "set...