Whalen v. County of Fulton
| Decision Date | 02 October 1997 |
| Docket Number | D,No. 1746,1746 |
| Citation | 126 F.3d 400 |
| Parties | George T. WHALEN and Elizabeth M. Whalen, Individually and as Parents and Legal Guardians of Michael W. Whalen, an Infant, Plaintiffs-Appellants, v. The COUNTY OF FULTON; The Fulton County Department of Social Services; Jeanne D. Johannes, Individually and in Her Official Capacity; John Rogers, Individually and in His Official Capacity; Malinda Argotsinger, Individually and in Her Official Capacity; Karen Glover, Individually and in Her Official Capacity; Judith Vanheusen, Individually and in Her Official Capacity; The County of Montgomery; The Montgomery County Department of Social Services; Robert L. Reidy, Individually and in His Official Capacity; Molly Johnson, Individually and in Her Official Capacity; and Cynthia Hallam, Individually and in Her Official Capacity, Defendants-Appellees. ocket 96-9417. |
| Court | U.S. Court of Appeals — Second Circuit |
Brendan C. O'Shea, Gleason, Dunn, Walsh & O'Shea, Albany, NY, of counsel, for Plaintiffs-Appellants.
Arete K. Sprio, Maynard, O'Connor, Smith, Catalinotto & D'Agostino, LLP, Albany, NY, of counsel, for Defendants-Appellees the County of Montgomery; Montgomery County Department of Social Services, Robert L. Reidy, Molly Johnson, and Cynthia Hallam.
Carrie McLoughlin-Noll, Horigan, Horigan, Pennock and Lombardo, P.C., Amsterdam, NY, of counsel, for Defendants-Appellees the Fulton Defendants.
Before: WALKER, McLAUGHLIN, PARKER, Circuit Judges.
Adoptive parents George and Elizabeth Whalen (the "Whalens"), and their adopted child Michael Whalen ("Michael") (collectively "plaintiffs") appeal from an order of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., District Judge ) granting the motion of county departments of social services and several individual county officials (collectively "defendants"), for summary judgment and dismissing plaintiffs' second amended complaint. In their second amended complaint, plaintiffs allege that defendants violated their First and Fourteenth Amendment rights by failing to facilitate visitation and contact between Michael and his biological sibling during a period when both children were in the defendants' custody.
We affirm.
The facts pertaining to this appeal are detailed in the district court's opinion granting defendants' motion for summary judgment, Whalen v. County of Fulton, 941 F.Supp. 290, 292-93 (N.D.N.Y.1996) ("Whalen II "), and in our prior opinion, dismissing for lack of jurisdiction defendants' interlocutory appeal of the district court's denial of defendants' motion to dismiss on the grounds of qualified immunity, Whalen v. County of Fulton, 19 F.3d 828, 829-30 (2d Cir.1994) ("Whalen I "), familiarity with which is assumed.
The infant plaintiff, Michael, was born in Montgomery County, New York, on January 27, 1986. In September 1986, Michael's biological parents voluntarily placed him in the custody of the defendant Montgomery County Department of Social Services (the "MCDSS"), and Michael was placed in foster care. Shortly thereafter, Michael's biological parents moved to Fulton County, New York.
On August 1, 1987, Michael's biological sister, Elizabeth, was born in Fulton County, and she lived with her biological parents. From August 1987 to December 1988, Elizabeth and Michael visited each other on approximately twenty-two occasions. In January 1989, Michael's biological parents voluntarily surrendered him for adoption, and visitation between Michael and Elizabeth ceased.
In March 1989, plaintiffs, the Whalens, were informed by their Orange County caseworker that Michael was in foster care and available for possible adoption through the MCDSS. In April 1989, the Whalens were advised that Michael had a sister and were asked whether they would be interested in adopting Elizabeth also. The Whalens indicated their willingness to do so; no further discussions on the subject occurred. During the spring and summer of 1989, the Whalens contacted the MCDSS several times regarding Elizabeth's availability and were advised that she was still living with her biological parents and was not available for adoption.
In June 1989, Michael was placed for pre-adoption in the Whalens' home. In October 1989, Elizabeth was removed from the home of her biological parents by defendant Fulton County Department of Social Services (the "FCDSS") and placed in foster care in the Fulton County home of Robert and Aurelia Waites (the "Waites"). At that time, defendant FCDSS social worker John Rogers informed defendant MCDSS social worker Cynthia Hallam that the FCDSS had taken Elizabeth into custody and asked her whether Defendant MCDSS social worker Molly Johnson also spoke with Rogers. Johnson indicated that the permanency goal for Elizabeth was to return her to her biological mother and that this goal would be jeopardized by Elizabeth's placement in a Montgomery County home, rather than in a Fulton County home. Johnson also indicated that Michael's long-term placement and adoption might be jeopardized by Elizabeth's temporary placement with the Whalens. Defendant FCDSS social worker Malinda Argotsinger explained that the FCDSS did not wish to place Elizabeth with Michael because the goal for Elizabeth was to return to her biological mother, whereas the goal for Michael was to finalize adoption by the Whalens. Argotsinger stated that the FCDSS made a determination that it was not in the children's best interest to have visitation with each other because their goals were contradictory and because their biological mother did not want any further contact with Michael. The record appears to contain no formal documentation of this determination.
the MCDSS would provide a foster home for Elizabeth. The MCDSS declined custody over Elizabeth pending a child protective determination by the FCDSS, but Hallam requested that the FCDSS continue to advise the MCDSS of Elizabeth's status. In addition, Hallam told Rogers that the Whalens had indicated an interest in adopting Elizabeth if she were freed for adoption.
Between October 1989 and November 1990, the FCDSS caseworkers worked with Elizabeth's biological mother in the expectation that Elizabeth would ultimately be returned to her mother's care and custody.
In June 1990, the Whalens adopted Michael. Shortly thereafter, the Whalens' Orange County caseworker wrote to Johnson on the Whalens' behalf restating their continued interest in adopting Elizabeth. The Whalens received no response and were not informed that Elizabeth had been taken into the custody of the FCDSS.
In October 1990, a Permanent Neglect Petition was filed by Fulton County on behalf of Elizabeth, and in January 1991, Elizabeth's biological mother surrendered her parental rights. On January 26, 1991, the Whalens received an anonymous phone call informing them that Elizabeth had been placed in foster care with a couple who planned to adopt her. On June 13, 1991, Elizabeth's natural father admitted neglect, freeing Elizabeth for adoption. The FCDSS did not inform the Whalens of the surrender.
In June 1991, the Whalens filed a petition in Fulton County Family Court requesting custody and visitation with Elizabeth. In September 1991, the Waites filed a petition for custody of Elizabeth. In November 1991, the Fulton County Family Court conducted a custody hearing, after which it granted temporary custody of Elizabeth to the Waites, and awarded visitation rights to Michael.
On April 8, 1992, the Fulton County Family Court granted permanent custody of Elizabeth to the Waites, finding it to be in Elizabeth's best interests in part because she had developed a psychological bond with the Waites. The Waites thereafter filed an adoption petition which was granted in May 1992. On June 17, 1993, the New York State Appellate Division affirmed. See George L v. Commissioner of Fulton County Dep't of Soc. Servs., 194 A.D.2d 955, 599 N.Y.S.2d 319, 321 (N.Y.App.Div.1993).
In October 1992, the Whalens and Michael initiated this action pursuant to 42 U.S.C. § 1983 against the County of Fulton, New York, the FCDSS, individual FCDSS social workers Jeanne Johannes, John Rogers, Malinda Argotsinger, Karen Glover, and Judith VanHeusen (the "Fulton County defendants"); the County of Montgomery, New York; the MCDSS; and individual MCDSS social workers Robert Reidy, Molly Johnson, and Cynthia Hallam (the "Montgomery County defendants"), alleging that the acts and omissions of the Montgomery and Fulton County defendants--that is, the defendants' failure to implement contact or visitation between Michael and Elizabeth and their failure to place Elizabeth with the Whalens--deprived them of their (1) First Amendment right to freedom of intimate association; (2) Fourteenth Amendment substantive and procedural due process rights; and (3) First Amendment right of access to the courts. In addition, the plaintiffs alleged five pendant In January 1993, the defendants moved for summary judgment on the ground that the individual defendants were entitled to qualified immunity. On March 25, 1993, the district court denied the motion without prejudice to its renewal after further discovery and defendants appealed. On March 29, 1994, a panel of this court dismissed the appeal for lack of subject matter jurisdiction, Whalen I, 19 F.3d at 830-31, with Walker, J., dissenting, id. at 831-33.
state law claims, including: (1) fraud; (2) intentional interference with custody and visitation; (3) negligent interference with custody and visitation; (4) intentional infliction of emotional harm; and (5) negligent infliction of emotional harm.
In May 1996, the defendants again moved for summary judgment pursuant to Fed.R.Civ.P. 56(c) on the grounds that the individual defendants were entitled to qualified immunity and that the plaintiffs had failed to state a claim upon which relief may be granted. On September...
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