Sykes v. N.Y. State Office of Children & Family Servs., 1:18-cv-8309-GHW

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGREGORY H. WOODS, United States District Judge
Docket Number1:18-cv-8309-GHW
Decision Date25 September 2019

DERRY SYKES, Plaintiff,



September 25, 2019


GREGORY H. WOODS, United States District Judge:


Plaintiff Derry Sykes is earnestly concerned about the care of J.A., the fifteen-month-old grandson of Mr. Sykes' sister. He is also a convicted felon. Mr. Sykes' application to serve as J.A.'s foster parent was rejected because New York State law and regulations mandate the disqualification of people convicted of certain felonies—including crimes of violence—such as Mr. Sykes' forty year old robbery conviction. In this case, Mr. Sykes brought a number of claims to challenge his disqualification. Because he does not have a liberty or property interest in becoming the foster parent of J.A., who does not reside with Mr. Sykes, Mr. Sykes' claim that he was denied due process lacks merit. For that and the other reasons that follow, each of the defendants' motions to dismiss the complaint against them is GRANTED.

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A. Mr. Sykes' Relationship with Grandnephew J.A.

Pro se plaintiff Derry Sykes is the great-uncle of J.A., who was fifteen months old at the time that this case was filed.2 Memorandum in Support of Order to Show Cause, Dkt. No. 6 ("Pl.'s OTSC Mem."), at 2. J.A. is the grandson of Mr. Sykes' sister. Complaint, Dkt. No. 2 ("Compl."), at ¶ 20(iii). The allegations in the complaint make clear that J.A.'s mother is still living, as is his grandmother, Mr. Sykes' sister. Mr. Sykes was 59 years old at the time that this action was filed, and he lives with his long-term domestic partner, Elba Malave. Pl.'s OTSC Mem. at 2.

J.A. is in foster care in New Jersey. His current foster care provider is Ms. Perez, "who has taken excellent care of [J.A.] . . . ." Compl. ¶ 20(i). The precise reasons why J.A. was initially placed in foster care, rather than residing with his mother or another relative, are not stated in the complaint or Mr. Sykes' filings, but Mr. Sykes' complaint describes poor treatment of J.A. during one supervised visit with his mother, which is one of two events that form the basis for Mr. Sykes' complaints against Defendant State of New Jersey Department of Children and Families (the "NJ DCF"), which are described further below. And Mr. Sykes' text exchanges with Ms. Perez suggest that he believes that J.A. should not be placed in his mother's custody, and that visits with her should be terminated. Pl.'s OTSC Mem., Ex. B, at ECF p. 17.

There is no allegation that J.A. has ever lived with Mr. Sykes. The only personal contact between Mr. Sykes and his grandnephew described in the complaint and Mr. Sykes' other filings consists of a single supervised visit that lasted one hour and fifteen minutes. That visit and Mr.

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Sykes' communications with Ms. Perez are described in more detail below. It is apparent, however, that Mr. Sykes is a concerned family member, as reflected by his committed efforts to be approved as J.A.'s foster parent.

B. Mr. Sykes Applies to Become J.A.'s Foster Parent

Mr. Sykes alleges that in March 2018, the NJ DCF asked if he was willing to become J.A.'s foster parent. Pl.'s OTSC Mem. at 2. Mr. Sykes agreed. Because Mr. Sykes lives in New York, his application process was transferred to Defendant New York City Administration for Children's Services (the "NYC ACS"). Mr. Sykes and his partner began the application process, and began to go through training for the program. He received a certificate for one phase of the training on August 1, 2018. Pl.'s OTSC Mem., Ex. B, ECF pp. 22-23. As part of the application process, Mr. Sykes was required to undergo fingerprinting and a criminal record check.

NYC ACS submitted Mr. Sykes' records to defendant New York State Office of Children and Family Services ("OCFS"). OCFS sent NYC ACS a letter dated August 14, 2018, responding to its request for a criminal history check for Mr. Sykes. Pl.'s OTSC Mem., Ex. A, ECF pp. 11-12.

The letter from OCFS to the NYC ACS was captioned "Mandatory Disqualification." It reported that Mr. Sykes had been convicted of "the following Mandatory Disqualifying Conviction(s): Date of Conviction 05/22/1978 Robbery 2d Degree Penal Law 160.10." Id. at 11. The same information was reported twice, with the jurisdiction of conviction listed as Kings County Supreme Court.

OCFS's letter reminded NYC ACS that

[W]henever there is a denial or revocation, to provide the applicant or the certified or approved foster or adoptive parent with a copy of this summary of the criminal history and to notify the individual of his or her right to review the records maintained by CDJS or the FBI and of any applicable right(s) the individual may have. For your convenience, in completing the Denial/Revocation Letter/Notice of Results of Fingerprinting/Criminal Record Found, these are Crimes Involving Violence.

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Id. at 12. The letter reported two additional convictions for Mr. Sykes, namely a 1994 conviction for "Intent to Obtain Transportation without Paying Penal Law 165.15," and a 1998 conviction for "Criminal Possession of a Controlled Substance 7th Degree Penal Law 220.03." Id.

On August 21, 2018, the NYC ACS forwarded the August 14, 2018 OCFS letter to Mr. Sykes under cover of a letter reporting on their foster home study. Id. at 10. The NYC ACS stated that the agency was unable to approve Mr. Sykes' home for a foster placement "due to the results of your Criminal Clearances from the NYS Division of Criminal Justice Services . . . and the Federal Bureau of Investigation . . . which were returned with a Mandatory Disqualification due to previous convictions." Id. As a result, the agency closed Mr. Sykes' foster home request as of the date of the letter. Id.

Shortly after this, in September 2018, Mr. Sykes filed this lawsuit challenging the denial of his foster parent application. He was also aggrieved by the foster parent application process because he was required to fill out an application and to attend a four-hour orientation class before learning the results of the criminal background check that ultimately disqualified him. Compl. ¶¶ 17-18. He argues that it would be "absolutely logically [sic] for Defendant NYC to first administer first [sic] the criminal background investigation before any training which would save tax payers['] money and emotional and mental anguish of be[ing] disqualified . . . ." Id. at ¶ 18.

Mr. Sykes later received separate correspondence from OCFS. The agency sent him a "Denial/Revocation Letter" dated November 9, 2018. Plaintiff's Memorandum of Law in Opposition to Motion to Dismiss, Dkt. No. 35 ("Pl.'s Opp."), Ex. A2 (the "OCFS Denial Letter"), at ECF pp. 24-25. The OCFS Denial Letter reiterated the reason why Mr. Sykes had been mandatorily disqualified from serving as a foster parent, namely his felony conviction for a crime involving violence as reported by the FBI. The letter also described the nature of Mr. Sykes' rights in response to the denial. The letter detailed that a hearing was available to challenge the State's

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decision "if a foster child is to be removed or is removed from your home because of a criminal history referenced in this letter . . . ." Id. at 25. And the letter also stated that a post-denial hearing was available for a "prospective or approved adoptive parent" whose application has been denied or whose approval has been revoked. Id. However, because Mr. Sykes, as an applicant to become a foster parent, fit into neither category, the letter informed him that he had a right only to a copy or summary of his criminal history record—not a separate hearing or other process to challenge the denial. Id.

Nonetheless, Mr. Sykes requested a review of his denial. On November 16, 2018, Mr. Sykes wrote to OCFS requesting a hearing. Pl.'s Opp., Ex. A1, ECF pp. 21-22. Mr. Sykes noted in his letter that his conviction was over forty years old, and that it was best for his nephew to be in a loving and protected home. He argued that the rejection of his application on the basis of the statutory disqualification was unconstitutional because it judged him unfit without taking into consideration the circumstances of his case. Id.

A supervising administrative law judge responded to Mr. Sykes letter on behalf of OCFS on November 30, 2018. Pl.'s Opp., Ex. B, ECF pp. 28-29. The administrative law judge's response to Mr. Sykes was thorough, and merits quotation at length:

Pursuant to 18 NYCRR Part 443, you would be entitled to a hearing under the current legal and regulatory framework as follows: If there is an indicated report of abuse or maltreatment, you may request a hearing to contest the indicated report. Further, where a foster child is placed in your home, and the social services determined to remove the child from your home, you could request a hearing to contest the removal of the child.

Under the current legal and regulatory framework, you do not have the right to an administrative hearing to review a denial or revocation of your certification as a foster parent based on a mandatory disqualifying crime pursuant to Sections 372-e and 378-a(2)(e)(1) of the Social Services Law (SSL).

Pursuant to SSL § 378-a (2)(e) convictions for certain crimes automatically bar you from being a foster parent, adoptive parent, or child care provider and certain crimes do not. If you have a conviction for some other offense, you are not automatically barred. SSL § 378-a (e)(3) provides that a safety assessment be

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provided in accordance with the provisions of Article 23-A of the Corrections Law. SSL § 378-a(2)(h) requires that in such circumstances, a safety assessment be performed.

The case law you are citing, Vlandis v. Kline, 92 S.Ct. 2320 (1973) does not

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