Opinion
2009–1414
01-30-2018
Kristine FREDA, as Administrator of the Estate of Adrian Dante Hines, deceased, and Kristine Freda, individually, Plaintiffs, v. COUNTY OF TOMPKINS, and Tompkins County Department of Social Services, Defendants.
EDWARD E. KOPKO, ESQ., 308 N. Tioga Street, Second Floor, Ithaca, NY 14850, COUNSEL FOR PLAINTIFF OFFICE OF THE COUNTY ATTORNEY, By: Jonathan Wood, Esq., County Attorney, 125 East Court Street, Ithaca, NY 14850, COUNSEL FOR DEFENDANT
EDWARD E. KOPKO, ESQ., 308 N. Tioga Street, Second Floor, Ithaca, NY 14850, COUNSEL FOR PLAINTIFF
OFFICE OF THE COUNTY ATTORNEY, By: Jonathan Wood, Esq., County Attorney, 125 East Court Street, Ithaca, NY 14850, COUNSEL FOR DEFENDANT
Eugene D. Faughnan, J.
The Defendants in this case, County of Tompkins and Tompkins County Department of Social Services, have moved for Summary Judgment pursuant to CPLR 3212, seeking dismissal of the complaint. Kristine Freda, as Administrator of the Estate of Adrian Dante Hines and individually ("Plaintiffs") oppose the motion, and argue that there are questions of fact which preclude Summary Judgment.
Plaintiffs commenced this action in December of 2009 seeking money damages as the result of the death of a fourteen month old infant, Adrian Dante Hines, on October 3, 2008 while the child was in foster care. In accordance with an order of the Family Court, Defendants had placed the child with a foster family on July 29, 2008. An investigation after the incident concluded that the cause of death was head trauma due to "shaken baby syndrome" and the injuries were sustained while the child was in the care of a fifteen year old.
Plaintiffs' complaint alleges that Defendants knew, or should have known, that the child was regularly and frequently supervised by a fifteen year old, who lacked the training and maturity to be given that responsibility. Plaintiffs also allege that Defendants failed to adequately follow protocols and train staff.
The case has been before the Court on several prior occasions. It was last before the Court in 2017 to address a discovery motion by Plaintiffs seeking additional depositions. The motion resulted in a Decision by the Court on September 9, 2016, which directed non-party depositions of the foster parents and the minor who was supervising the child. The Court's Decision also recognized that Defendants' instant Summary Judgment motion has been pending since August, 2013 , and therefore the Court also provided orders for the completion of depositions and resolution of the Summary Judgment motion. The deadlines were extended by an Order dated December 2, 2016, where the Court directed the non-party depositions to be completed by March 1, 2017. Defendants were then directed to submit any supplemental papers relating to their motion by March 31, 2017 and Plaintiffs to file any supplemental papers by April 14, 2017.
After the Defendants' motion was initially made in August, 2013, Plaintiff filed a cross motion seeking discovery. The Court issued a Decision and Order on November 18, 2013 finding that it could not determine the questions of law presented in Defendants' motion without a more complete record, and the motion was adjourned to allow Plaintiffs' additional discovery. Since that time, additional discovery disputes, motions and court conferences have taken place, without resolution of Defendants' Summary Judgment motion.
The depositions of the foster parents, Theresa and Leon Hunt (collectively "Hunts") took place in February 6, 2017. The minor supervising the child could not be located, so her deposition was not obtained. Supplemental papers were not submitted by either party, and the Court placed this case on the motion calendar for December 1, 2017. Thereafter, Plaintiffs did submit opposition papers, but did not provide any explanation as to the failure to file supplemental papers by April 14, 2017. Although Plaintiffs' submission is beyond the date set by the Court, in the interest of justice, Plaintiffs' opposition papers will be considered by the Court.
LEGAL ANALYSIS AND DISCUSSION
SUMMARY JUDGMENT
"On a motion for summary judgment, the movant must establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact." Lacasse v. Sorbello , 121 AD3d 1241, 1241 (3rd Dept. 2014) [citing Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 (1986) ; Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 (1985) ; Walton v. Albany Community Dev. Agency , 279 AD2d 93, 94–95 (3rd Dept. 2001) ]. If the movant fails to make this showing, the motion must be denied. Alvarez, supra . Once the movant meets its burden, then the opposing party must produce evidentiary proof in admissible form sufficient to raise a triable issue of material fact. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). In deciding the motion, the court must draw all reasonable inferences in favor of the nonmoving party and deny summary judgment if there is any doubt as to the existence of a material issue of fact. Branham v. Loews Orpheum Cinemas, Inc. , 8 NY3d 931, 932 (2007).
Defendants, as the movants, bear the initial burden to submit evidentiary proof in admissible form demonstrating its entitlement to judgment as a matter of law. Overocker v. Madigan , 113 AD3d 924, 925 (3rd Dept. 2014). The proponent of summary judgment may not satisfy its burden by pointing to deficiencies in the nonmoving party's proof. Id. Failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad v. N.Y.U. Medical Center, supra .
To establish the County was negligent for failing to supervise a foster home, it must be established that the County had "sufficiently specific knowledge or notice of the dangerous conduct which caused injury." Lillian C. v. Administration for Children's Services , 48 AD3d 316, 317 (1st Dept. 2008), quoting Mirand v. City of New York , 84 NY2d 44, 49 (1994) ; see also Keizer v. SCO Family of Servs. , 120 AD3d 475 (2nd Dept. 2014) ; McCabe v. Dutchess County , 72 AD3d 145 (2nd Dept. 2010).On a motion for Summary Judgment, the standard can be stated as follows:
In order to establish their prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleges negligent supervision of the plaintiff while he was in foster care, the County defendants had to establish that they did not have sufficiently specific knowledge or notice of the dangerous conduct which caused the infant plaintiff's injuries (see McCabe v. Dutchess County , 72 AD3d at 151 ; M.S. v. County of Orange , 64 AD3d 560, 561, 884 NYS2d 74 [2009] ). In other words, the County had to show that the third party acts could not have been reasonably anticipated (see M.S. v. County of Orange , 64 AD3d at 561 ; Liang v. Rosedale Group Home , 19 AD3d 654, 655, 799 NYS2d 69 [2005] ). Andrew S. v. Gristina , 97 AD3d 651, 652 (2nd Dept. 2012).
In Andrew S. v. Gristina , supra , the minor child brought an action against DSS for acts of sexual assault against the child while in a foster home. The Court noted that the County conducted a background check on the foster parents, which was negative for any prior criminal history or history of child abuse or neglect. DSS also observed the child in the foster home, and also met with the child on a monthly basis, and never found any evidence of sexual abuse. The child also did not disclose any abuse to caseworkers, school administrators and counselors, or Family court, until after he had moved from that foster home. The court found that the County had sustained their initial burden that they did not have specific knowledge or notice of the abuse occurring to the child, and affirmed dismissal of the complaint.
Similarly, in Lillian C., supra , the court dismissed a claim based on the alleged failure to supervise foster parents and prevent child abuse. In that case, the foster parents had acted as foster parents on two prior occasions without incident, the biological mother and child had met with the agency multiple times and the child had not made any statements concerning sexual abuse. Background checks of the foster parents had been conducted and were negative for prior criminal history, and the foster father had specifically denied any prior arrests or convictions. The Court found that the defendants could not be liable because they did not have sufficiently specific knowledge or notice of the dangerous conduct which caused injury.
In the present case, Defendants have submitted affidavits from the Tompkins County District Attorney, whose office investigated the incident and did not file charges, as well as from Patricia Carey, the Commissioner of the Tompkins County Department of Social Services. Ms. Carey stated that the foster parents had been involved in the foster program for many years, and went through background checks and training. Ms. Carey also noted this was the first serious injury or death occurring in a foster home in her 22 years of involvement. Depositions were also obtained of the Plaintiff and the foster parents.
The evidence shows that the foster parents had served as foster parents for more than 11 years and had successfully provided foster care for 19 children. Defendants completed a thorough investigation of the foster parents prior to placement, including fingerprint and criminal records checks. The foster parents had also received extensive foster care training and had signed letters of intent to not leave children under 10 years of age alone without adult supervision. The foster home had been re-certified in May, 2008. The child's mother, the Plaintiff, had also visited the child shortly before this incident and did not make any complaints about the child's treatment. The District Attorney's affidavit stated that the foster mother admitted that she had left the infant in the care of the 15 year old on several occasions, but had hidden that fact from DSS. Further, the State Department of Social Services conducted an investigation and found no fault with the selection or oversight of the foster parents.
Based upon the evidence submitted by Defendants, and having considered the cases referenced above, the Court finds that Defendants have established a prima facie showing entitling them to Summary Judgment. The burden is thus shifted to Plaintiffs to raise a triable issue of fact.
Plaintiffs point to the testimony of the foster parents to attempt to meet that requirement. The foster mother testified that she was aware of the rule prohibiting leaving a child under 10 years old without adult supervision, but that she knew the rule was broken quite often. She admitted that she did not know for sure what DSS knew, but personally believed DSS was aware that the rule was being broken frequently. She referenced one instance, at a training meeting, "and it was brought up, and I was told during a break to keep my mouth shut" or she could cause trouble for everyone. However, that discussion was with another foster parent, and not DSS personnel. The foster mother in this case conceded that she never had a discussion with anyone from DSS concerning violation of the rule.
Even if that account from the meeting is true, it does not show that the Defendants were aware that the policy was being broken, or that these foster parents were breaking the rule. The testimony does not identify any individuals who were involved in the discussion, and certainly does not identify any DSS personnel who may have been made aware of this. Although the foster parents may have believed that many other foster parents were leaving children under 10 with non-adult supervision, the testimony also shows the information was being withheld from DSS personnel. At best, Plaintiffs' claim is that because these foster parents believed the practice of allowing teenagers to watch minor children was widespread, DSS must have known of the practice.
Plaintiffs' evidence is insufficient to raise a triable issue. "Motions for summary judgment may not be defeated merely by surmise, conjecture or suspicion." Citibank, NA v. Abrams , 144 AD3d 1212,1216 (3rd Dept. 2016), quoting Shaw v. Time–Life Records , 38 NY2d 201, 207 (1975). Plaintiffs have not provided any evidence that the County knew of the alleged widespread usage of teenagers to supervise children, or that these particular foster parents were doing so. Therefore, Plaintiffs have not provided evidence that Defendants had "specific knowledge or notice" of the practice in general, or in this particular situation. Furthermore, Plaintiffs have not established that this practice, even if it existed, was the conduct which caused the injury. The District Attorney's investigation did not lead to any charges, and it has not been determined exactly how the injuries were sustained, or that the cause of the injuries was due to the fact that a minor was supervising the child. To the contrary, all the evidence showed that the child was not abused or mistreated prior to this incident. The county had no specific knowledge of this danger prior to this incident.Accordingly, on the First Cause of Action for negligence Defendants are entitled to Summary Judgment.
Plaintiffs' complaint also contains four other Causes of Action based on federal claims: substantive due process; procedural due process; statutory violation of Federal Adoption Assistance and Child Welfare Act of 1980; statutory violation of the Child Abuse Prevention and Treatment Act; and violation of 42 USC § 1983.
A claim for substantive due process violation requires a plaintiff to show the "government action was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’ " Pena v. Deprisco , 432 F3d 98, 112 (2nd Cir. 2005), quoting County of Sacramento v. Lewis , 523 U.S. 833, 847 (1998). The due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm; rather it is "conduct intended to injure in some way unjustifiable by any government interest [which] is the sort of official action most likely to rise to the conscience-shocking level." Sacramento v. Lewis , 523 U.S. at 849–850. In this case, although the result was tragic and conscience-shocking, Plaintiffs have not submitted evidence to raise a triable issue as to Defendants' negligence, let alone rising to the level of a substantive due process violation.
Plaintiffs' third cause of action alleges a deprivation of constitutional rights to procedural due process as provided for by the Fifth and Fourteenth Amendments to the United States Constitution. The allegations assert that the "practices of Tompkins County constitute a policy, pattern, custom and/or practice of failing to exercise reasonable and professional judgment and of deliberate indifference to the constitutionally protected liberty and property interest of" the child.
In analyzing due process claims, the New York State Court of Appeals has stated:
Plaintiffs have asserted violations of the substantive component of the Due Process Clause of the Fourteenth Amendment of the United States Constitution—sometimes called substantive due process—as well as violations of the procedural component of the Due Process Clause. In general, procedural due process claims challenge the procedures used by the government in effecting a deprivation of a right, whereas substantive due process claims challenge the action itself. Thus, substantive due process implicates "the essence of state action rather than its modalities." In one commentator's formulation, "[p]rocedural due process differs from substantive due process by focusing not on what a person has been deprived of, but rather on how the deprivation was accomplished."
The classic procedural due process case arises when the government acts to deny or curtail someone's life, liberty or property interest and defends its action by asserting that it employed fair procedures in furtherance of a legitimate governmental objective (see, e.g., Schall v. Martin , 467 US 253 [pretrial juvenile detention]; Vitek v. Jones , 445 US 480 [prison to mental hospital transfer]; Addington v. Texas , 441 US 418 [civil commitment] ). Mark G. v. Sabol , 93 NY2d 710, 723 (1999) (footnotes omitted).
Plaintiffs' allegations are that the County had a custom or practice of failing to investigate the practice of foster parents leaving children in the care of other minor children, and failed to act, and are guilty of deliberate indifference. "Stated most generally, the requirement of deliberate indifference is that the defendant be ‘deliberately indifferent to plaintiff's welfare.’ Holmes v. Goldin , [615 F2d 83, 85 (2nd Cir. (1980)) ]. Of course, such indifference cannot exist absent some knowledge triggering an affirmative duty to act on plaintiff's behalf, but actual knowledge of a specific harm is not the only type of knowledge that will suffice. Defendants may be held liable under § 1983 if they, or in the case of an agency, its top supervisory personnel, exhibited deliberate indifference to a known injury, a known risk, or a specific duty, and their failure to perform the duty or act to ameliorate the risk or injury was a proximate cause of plaintiff's deprivation of rights under the Constitution." Doe v. New York City Dep't Of Social Services , 649 F2d 134, 144–145 (2nd Cir. 1981). Again, for the same reasons described above, Plaintiffs have failed to raise a triable issue that the County had actual knowledge of the potential harm, or even that the practice was so customary and widespread, that they should have known of a potential risk. Furthermore, the initial removal of the child and placement into foster care was upon consent. Thus, there could be no violation of due process on that basis. See generally, Murphy v. Baker, 2017 U.S. Dist. LEXIS 83052 (D. Mass. 2017).
Plaintiffs have also asserted claims based upon the Federal Adoption Assistance and Child Welfare Act of 1980 (AACWA) and the Child Abuse Prevention and Treatment Act (CAPTA). The United States Supreme Court specifically ruled in Suter v. Artist M. , 503 U.S. 347 (1992) that the AACWA did not create a private cause of action. Following Suter , Congress enacted 42 USC § 1320a–2, to address enforcement of the laws governing Social Security, but the statute specifically states that it is not intended to alter the holding that Section 671(a)(15) of the AACWA is not enforceable in a private action. See Elisa W. v. City of New York , 2016 US Dist LEXIS 123332, *9–10 (SDNY 2016).
Plaintiffs claim that Defendants violated a right under AACWA to: 1) placement in foster homes that conform to nationally recommended professional standards; 2) regular judicial and administrative review of foster care placements; 3) receive services in a child welfare system with an adequate information system to permit decision makers to make fully informed choices in the child's best interest. However, Plaintiffs have failed to identify any specific provision of the AACWA with particularity so the Court can determine whether a private right of action exists. See Murphy v. Baker, supra . Nevertheless, the Court will attempt to discern the provisions from the language of the complaint.
With respect to the allegation of a right to "placement in foster homes that conform to nationally recommended professional standards", that language seems to be related to 42 USC § 671(10) which mandates that the state plan for foster care must provide:
for the establishment or designation of a State authority or authorities that shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for the institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, and which shall permit use of the reasonable and prudent parenting standard 42 USC § 671(10)(A).
That specific statute does not create a private right of action. See Elisa W. v. City of New York, supra. The statute imposes duties upon the state, which are not enforceable by individuals but by the federal government. See, Suter v. Artist M. , 503 U.S. 347, supra .
The Plaintiff's other allegations concerning judicial and administrative review, and an information system sufficient to make informed decisions for and about the child, are also not sustainable under AACWA. Plaintiffs' allegations appear to be aimed at 42 USC § 671(16) which directs that the State foster care program must provide a case plan and case review system. Depending on the specific allegations, there may or may not be a private right of action under that statute. See e.g. Elisa W. v. City of New York, supra . The Complaint is lacking sufficient detail to permit the Court to conclude that a private right of action exists. Murphy v. Baker, supra . That determination would be more akin to a motion to dismiss. But, even assuming arguendo , that a private right of action is available under that statute, the Court would still be constrained to find that Defendants have submitted a prima facie case in support of their motion for Summary Judgment (based upon the factors noted above), and the Plaintiffs have failed to raise a triable issue on the question of a violation of AAWCA.
Plaintiffs have also asserted a claim under the Child Abuse Prevention and Treatment Act, 42 USC 5101 et. seq. The allegations include claims that there was a failure to investigate allegations of abuse, a failure to protect the child from those who might endanger his health, and a failure to provide programs necessary to address problems of child abuse. However, Plaintiffs failed to state what provision(s) of that law they rely upon, or any specific basis for holding the Defendants liable under the statute. In any event, the courts have concluded that CAPTA does not create a private right of action. Johnson v. Salmon , 2016 U.S. Dist. LEXIS 73390 (D. Mass 2016); Hilbert S. v. County of Tioga , 2005 U.S. Dist. LEXIS 29423 (NDNY, 2005); Mark G. v. Sabol, supra .
Plaintiffs lastly make claims under 42 USC § 1983.In Maine v. Thiboutot , 448 U.S. 1 (1980), the Supreme Court held that § 1983 was available to enforce violations of federal statutes by agents of the State. See Wright v. Roanoke Redevelopment & Housing Auth. , 479 U.S. 418 (1987). For the reasons set forth above, this Court concludes that Plaintiffs' claims are either not allowable because there is no private right of action for the claims, or the claims fail to raise triable issues sufficient to overcome Defendants' prima facie showing of entitlement to Summary Judgment. Nor would a claim of respondeat superior be viable.
It is well established that a plaintiff may not hold a municipality liable pursuant to section 1983 under a theory of respondeat superior (see Monell v. New York City Dept. of Social Servs. , 436 US 658, 694, 98 S Ct 2018, 56 L Ed 2d 611 [1978] ). Rather, to hold a municipality liable under 42 USC § 1983 for the unconstitutional actions of its employees, a plaintiff must plead and prove (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right (see Canton v. Harris , 489 US 378, 385, 109 S Ct 1197, 103 L Ed 2d 412 [1989] ; Monell v. New York City Dept. of Social Servs .; Wilner v. Village of Roslyn , 99 AD3d 702, 703–705, 952 NYS2d 71, 73 [2d Dept 2012] ). " Section 1983 is only a grant of a right of action; the substantive right giving rise to the action must come from another source" ( Singer v. Fulton County Sheriff , 63 F3d 110, 119 [2d Cir 1995] ). Matter of Torres v. City of New York , 39 Misc 3d 558, 563–564 (Court of Claims, 2013).
The Plaintiffs have not established any official policy, custom or practice The belief of the foster parents that DSS must have known of the practice in allowing teenagers to care for infants is not sufficient to rebut the prima facie case set forth by Defendants. This is particularly true in this case, where the foster parents had successfully served in that capacity on numerous other occasions, and were properly and thoroughly investigated prior to placement. See, Lillian C., supra. Accordingly, the Court concludes that Plaintiffs' have failed to raise a triable issue with respect to claims under § 1983.
CONCLUSION
Based upon the foregoing, the Defendants' motion for Summary Judgment dismissing the Complaint is GRANTED.
This constitutes the Decision and Order of the Court.