New York Family Law Blog
Plaintiffs are siblings, born on December 29, 1976 and January 16, 1980, respectively. They were removed from the custody of their natural parents in February 1982 after it was determined that the five-year-old child had contracted gonorrhea of the throat. The children were first placed with defendant Society and, after approximately two months, were transferred to the custody of defendant Agency. A New York Family Lawyer said that, at her deposition, the five-year-old child testified, inter alia, that in the first foster home, she was kept in her room “hour after hour.” In the second home, she was beaten and pushed into a glass, cutting her wrist; the foster mother told the five-year-old child to say that she had fallen off a bicycle. The third foster parent, pulled her hair, struck her and routinely confined her to a room; a male child in the same home fondled her, at least once, between the legs. The said child was then between five and seven years old. In another home on Long Island, the foster parent was not abusive, but the older children used to have “oral sex parties” with the said child. She was ultimately returned to her mother’s home, where she was subjected to constant physical abuse by her mother and stepfather.
A New York Custody Lawyer said that, the complaint, dated September 5, 1985, alleges that plaintiffs were subjected to physical and sexual abuse, both within and outside the foster care system. The first and second causes of action allege that the City of New York and its agencies, the Human Resources Administration and the Department of Social Services (collectively, the City), failed to act on reports of abuse and neglect received since January 1977 by taking timely and appropriate action to remove, respectively, plaintiff Debbie M. and plaintiff Sean M. from the custody of their biological parents. The third and fourth causes of action allege that from the time they were placed in foster care in February 1982 until March 1984, plaintiffs were subjected to abuse and neglect in a series of foster homes and were denied adequate medical care. It is further alleged that after Family Court returned them to their mother’s home, plaintiffs were subjected to further abuse and neglect. The complaint asserts that defendants breached their duties to investigate complaints of abuse and neglect, to provide a clean and safe environment for the children and to furnish appropriate medical treatment.
A Queens Family Lawyer said that, this litigation has a long and tortuous history. Plaintiffs filed a bill of particulars in 1985 and a further bill in 1986. The City filed a bill of particulars in 1994, and defendant Agency filed its bill of particulars in 2000. It appears that no depositions were conducted until 1991 and that plaintiffs were not deposed until 1999. The instant motions to dismiss the complaint were interposed in March 2002. All defendants contended that they were subject to statutory immunity pursuant to Social Services Law § 419. Defendant Agency also sought dismissal on two additional grounds: that plaintiffs failed to comply with discovery demands (CPLR 3124, 3126), particularly with respect to deposition testimony, and that the evidence failed to demonstrate LWS knew or should have known that the foster families with whom it placed plaintiffs were unfit. In addition to statutory immunity, the City maintained that it was immune from liability under New York common law.
A Queens Custody Lawyer said that, the Supreme Court reserved decision on so much of the motions as sought dismissal for plaintiffs’ failure to comply with discovery demands. The court granted the motion of defendant Society, dismissing the complaint as against it on the ground that there is no evidence that any complaints were made against said defendant regarding the care of the then infant plaintiffs during the time period covered by the complaint. The court denied the motions of the City and Agency as to their claims of immunity.
A Bronx Abuse and Neglect Lawyer said that, on appeal, the City and Agency continue to maintain that they are immune from liability. Defendant Agency now advances, as an additional ground for reversal, the prejudice that would be sustained if it were required to defend an action which, as supplemented by plaintiffs’ bill of particulars, involves events that took place between 1980 and 1994. It also asserts that Supreme Court improperly entertained plaintiffs’ affidavits of merit, submitted after the Agency had submitted its reply papers. Moreover, the Agency maintains that plaintiffs’ affidavits “set forth only speculation as to the alleged acts of abuse.”
The issue on this appeal is whether the City of New York and a child protective service, defendant Agency are insulated by immunity from liability for injuries allegedly sustained by children, both in connection with their judicial placement into the foster care system and subsequently, while in the custody of various foster homes.
The court said that the immunity asserted by the City and Agency must be assessed in light of the two distinct wrongs alleged in the complaint: the failure to respond appropriately to charges that plaintiffs were subjected to abuse and neglect (1) in their own home (first and second causes of action) and (2) in the foster homes in which they were placed (third and fourth causes of action). The first two causes of action are directed solely against the City which, plaintiffs allege, received numerous complaints that they were being abused but failed in its duty to remove them from the custody of their parents and to institute court proceedings to prevent further abuse and neglect. The third and fourth causes of action are directed against all defendants. It is alleged that defendants breached their duty to investigate complaints made by the children’s natural mother and maternal grandmother alleging maltreatment by foster families and that defendants generally failed to provide a safe environment for the children, including adequate medical care.
This case has wound its way, glacially, through the litigatory process over a period of nearly 20 years, during which a record exceeding 1,600 pages has been amassed. Despite the volume of information presented, however, relatively little is known about the circumstances of the abuse to which plaintiffs were subjected. Abuse definitely occurred because the young subject child was diagnosed with a venereal disease before she was old enough to attend kindergarten. The source of the abuse the children experienced while in their mother’s care, however, is elusive. The mother blamed her husband, the father blamed his wife, and the maternal grandmother blamed both the father and her own daughter. Over the course of approximately four years, despite the detailed investigation of numerous allegations emanating from all three of these adults and directed, variously, at each parent, social workers were unable to confirm a single instance of abuse or neglect.
The circumstances leading up to the City’s initiation of proceedings to remove plaintiffs from their mother’s care are well chronicled. At the time the first allegation of mistreatment was received in January 1977, plaintiffs’ parents were receiving counseling under the auspices of Manhattan Family Court, where they were monitored by the Home Advisory Unit and received court-ordered psychiatric evaluation. However, no details have been provided. What is known about the family is contained largely in records maintained by the Department of Social Services (DSS). Plaintiffs’ depositions are also included in the record but, given the tender years of the subject children, even at the end of the period covered by the complaint (ages four and seven, respectively) and the time that elapsed before their testimony was taken (approximately 15 years later), their recollection of events is understandably lacking in detail.
With respect to the first two causes of action of the complaint, which assert that the City negligently investigated allegations of abuse and failed to timely remove plaintiffs from an abusive home environment, this Court has held that the City’s negligence in the investigation of abuse complaints and the placement of children into foster care constitutes misfeasance in the performance of discretionary duties, which is not actionable. Social Services Law § 419 “affords immunity to those participating in the investigation of child abuse allegations as long as they act within the scope of their employment and do not engage in willful misconduct or gross negligence. The purpose of the statutory immunity is to promote swift and competent investigation of child abuse allegations by a child protective service.
The record discloses that the subject children’s immediate family, particularly their maternal grandmother, leveled a constant barrage of charges of abuse and neglect against the biological parents from 1977 to early 1982 which, after extensive investigation by the City, were determined to be unfounded. Prior to children’s placement in foster care in February 1982, neither home visits nor medical examination revealed any indication of abuse or neglect. When clear evidence of abuse was discovered, the City promptly brought a petition to remove the children from their mother’s care.
Plaintiffs fail to advance any ground to warrant excluding this case from the qualified immunity afforded by Social Services Law § 419. It is not alleged that any person involved in the investigation acted outside the scope of employment; nor do plaintiffs identify any act of gross negligence. The record provides a substantial factual basis to support the City’s decision to permit the children to remain with their natural mother until abuse became manifest in February 1982. The records showed that child protective services responded to, and investigated, each and every allegation of abuse made by the maternal grandmother. The detailed reports generated by the caseworker demonstrated that the mother, father and children, as well as the grandmother, were interviewed. The worker also attempted to contact neighbors who allegedly witnessed the abuse. Home visits were made and referrals given to the mother to obtain therapy and counseling. The worker obtained a report from the family physician, who noted that during the period of time that the subject child was his patient, he never saw any physical evidence of abuse. The sole evidence submitted by plaintiffs to support their claim was the child’s recollection of being subjected to abuse. However, due to passage of time and her then tender age, she could not recall whether her family was ever investigated or the extent of any investigation. Thus, her testimony was insufficient to raise a question of fact as to whether the City was grossly negligent in its investigation of the abuse complaints from 1977 to 1982. Finally, the City was entitled to rely on the presumption of good faith afforded by the statute in moving for dismissal of these causes of action.
To the extent that the complaint can be construed to allege that the City negligently placed the children in foster care, such placement was the result of a court order and is entitled to judicial immunity, which extends to the employees of a child protective service that assists the court in effecting the placement. In addition, it is settled that Social Services Law § 419 provides no private right of action to a plaintiff alleging negligence in connection with the furnishing of information pertinent to the placement of a child in protective care. Thus, plaintiffs’ first and second causes of action should have been dismissed.
Accordingly, the court held that the order of the Supreme Court, Bronx County, entered on or about October 23, 2003, which, to the extent appealed from as limited by the briefs, denied defendant Agency’s motion to dismiss the complaint based on statutory immunity and denied the City’s cross motion to dismiss the complaint based on statutory and common-law immunity, should be modified, on the law, to the extent of dismissing the first and second causes of action, and otherwise affirmed, without costs.
Although the state is insulated from liability with respect to the initial placement, they are answerable for any injuries sustained as the result of the failure to adequately supervise foster parents to ensure that children entrusted to their care are not subjected to mistreatment. If a child is being subject to abuse and neglect, don’t hesitate to ask for the assistance of a Bronx Order of Protection Attorney or Bronx Abuse and Neglect Attorney in order to protect the child from further harm. Call us at Stephen Bilkis and Associates.