Defendants move for summary judgment dismissing plaintiffs' complaint. Plaintiffs Alex Ryan, Sr. and his son Alex Ryan, Jr. cross-move for leave to amend their complaint to add an allegation that a notice of claim was served, a hearing was held pursuant to General Municipal Law § 50-h and more than thirty days had elapsed without defendants having made payment on such claim. For the reasons that follow, defendants' motion is granted, plaintiffs' cross-motion is denied as moot, and the complaint is dismissed.

INTRODUCTION

Plaintiffs' complaint raises a variety of civil rights claims under federal and state law against the County of Albany, the Albany County Department of Social Services ("DSS"), Ross A. Prinzo, in his capacity as Commissioner of DSS, Timothy Kircher, Carol Boyko and Liz Romeling.^[FN1] At the center of each of these claims is the fact that for the first five years of Alex Ryan, Jr.'s life, his father, Alex Ryan, Sr., was not only denied custody of his child, but also, for the most part, unsupervised visitation. Over this five-year period, to gain custody of his child, Alex Ryan, Sr. was required to undergo drug assessments, drug screenings, drug rehabilitation programs, psychological and mental health evaluations, parenting classes, supervision in his interactions with his child, the burden of protracted Family Court litigation and continual governmental interference with his right to parent his child all in the absence of proof that he was, or had ever been, an unfit, neglectful or abusive parent to his son (or any other child).

Defendants argue that plaintiffs' claims are foreclosed by various immunities, including: judicial immunity; discretionary function immunity; qualified immunity; and immunity for the reporting of suspected child abuse or neglect. Further, defendants contend that they are entitled to summary judgment on the merits of the various constitutional and statutory claims asserted by plaintiffs. Defendant Kircher also argues he was not served in this matter and, therefore, the Court lacks jurisdiction over him.

For the reasons that follow, the Court concludes that with respect to plaintiffs' federal claims: (a) defendants are not entitled to judicial immunity, except in certain limited respects; (b) [*2]the individual defendants are entitled to summary judgment on all claims except for the substantive due process claims, where plaintiffs have succeeded in raising triable issues of fact; (c) the municipal defendants are entitled to summary judgment on all claims; and (d) the substantive due process claims against the individual defendants must be dismissed on the basis of qualified immunity. With respect to plaintiffs' state law claims, the Court concludes that the doctrines of judicial immunity and discretionary function immunity entitle defendants to summary judgment on all claims. Finally, the Court concludes that it lacks personal jurisdiction over defendant Kircher.

BACKGROUND

Plaintiff Alex Ryan, Sr. (hereinafter "the father" or "plaintiff") is the father of Alex Ryan, Jr. (hereinafter "the child"), who was born on June 2, 1995. The child was taken into emergency custody by DSS officials on June 23, 1995, after Jacqueline Billingsley (hereinafter "the mother") failed to return for her son nine hours after leaving him with a casual acquaintance.

On June 27, 1995, DSS filed a neglect petition with Albany County Family Court ("Family Court") based on the mother's cocaine use during pregnancy and the child having tested positive for cocaine at birth. The petition mentioned the father by name, but did not lodge any allegations of abuse or neglect against him.

Within one week following the child's removal by DSS, the father filed the first of many petitions with Family Court seeking custody of his son. A July 6, 1995 order temporarily granted the father supervised visits with the child upon his completion of a substance abuse evaluation and psychological assessment. The order recites that it was issued upon the consent of all parties, and that the father was represented by counsel and the child by a law guardian.

On July 31, 1995, Family Court issued an order that sustained the charges of neglect against the mother and placed the child in the custody of DSS until July 10, 1996. During that period, the mother was directed to cooperate with DSS and follow its recommendations, participate in substance abuse treatment, and obtain a psychological evaluation. A second order of Family Court issued on the same date established the conditions by which the mother could obtain supervised visitation with the child.

By letter dated September 21, 1995, defendant Carol Boyko, the DSS caseworker assigned to supervise the placement of Alex Ryan, Jr., notified the father of the order of Family Court requiring him to complete a substance abuse assessment and psychological evaluation if he was interested in visiting with, or obtaining custody of, his child. She requested that the father contact her as soon as possible to arrange a meeting to discuss his plans for Alex Ryan, Jr. Ultimately, the parties spoke by telephone on October 10, 1995 and met in person the following day.

On November 9, 1995, DSS was informed by the Whitney Young FACTS substance abuse program, which was conducting the drug evaluation, that Alex Ryan, Sr. was known to its staff to be a drug user. On that basis, FACTS recommended that the father complete a 12-week educational program regarding substance abuse. The father denies being a drug user and [*3]contends that a member of the FACTS staff intentionally provided false information about him.^[FN2]

Over the following several months, defendant Boyko claims to have been advised of additional obstacles to reuniting Mr. Ryan with his child. In November 1995, she was informed that Alex Ryan, Sr. was residing in a shelter. In December 1995 and January 1996, she was notified that Alex Ryan, Sr. was residing with the child's mother. This was a concern because Family Court had barred the mother from having unsupervised contact with the child. In February 1996, DSS was informed that Ms. Billingsley was pregnant with another child by Alex Ryan, Sr., again raising the concern that the mother might obtain unsupervised access to her child through the father. Mr. Ryan contends that much of this information was factually incorrect, and that he never resided with the mother following the birth of Alex Ryan, Jr.

DSS officials received the results of the court-ordered psychological evaluation of Alex Ryan, Sr. in February 1996. The report, prepared by the Albany County Department of Child & Family Forensic Services, raised concerns about plaintiff's ability to parent his child. The report asserted that the father had failed to protect his son from the mother's drug use during pregnancy an assertion that plaintiff vigorously disputes and expressed concern that if forced to choose between protecting his son from the mother's drug use and maintaining an ongoing relationship with her, plaintiff might choose the latter. The evaluation further noted the father's minimal understanding of child development and lack of full understanding and appreciation of parental responsibilities. Plaintiffs argue that the evaluation was flawed, because it failed to adequately account for Mr. Ryan's inability to read. This alleged failure to appropriately account for his reading deficit rendered the entire evaluation unreliable, according to plaintiffs.

The psychological evaluation concluded that neither of Alex Ryan, Jr.'s natural parents were capable of caring for him, but the father should receive additional visitation with his child. However, only supervised visitation was recommended, based on the father's ongoing relationship with Ms. Billingsley and the court order preventing her from unsupervised contact with the child. Further, the evaluation recommended parenting classes and counseling for Mr. Ryan.

Defendant Boyko wrote to Family Court on April 17, 1996 and requested an extension of the child's placement and order of supervision. This request was based on the mother's non-compliance with the Family Court's orders and the fact that Alex Ryan, Sr. had not yet completed parenting classes. The letter reported to the Court that the father was visiting his child weekly and would progress to unsupervised visitation after a few more parenting classes.

In response to this letter,^[FN3] Family Court ordered a one-year extension of the child's [*4]placement. By May 1996, father and son had progressed to having unsupervised visits.

At some point prior to August 1996, defendant Boyko required the father to participate in a second substance abuse evaluation. This was based on the father's failure to complete the 12-week educational program recommended in the initial, court-ordered evaluation. Following the second evaluation, Ms. Boyko was advised by FACTS staff that Alex Ryan, Sr., was not being forthcoming regarding his prior history. Specifically, FACTS advised Ms. Boyko that Alex Ryan, Sr. was "untruthful, defensive and anti-social" and recommended that he attend an anger management program and have his urine screened for drugs bi-weekly. Apparently, Mr. Ryan left the FACTS office after being asked to provide a second urine sample for verification purposes. Again, Mr. Ryan contends that animosity by a FACTS staff member resulted in a flawed and unfair evaluation.

Records from DSS disclose several issues in September 1996. On September 12, 1996, DSS received a negative report from Parsons, the social service agency that had been providing Mr. Ryan with preventive services directed at uniting him with his child. The report indicated that Mr. Ryan had cancelled visits and had been "really slacking off" in his contacts with staff. In addition, DSS received complaints of erratic behavior by Mr. Ryan, including missed appointments and the foster mother reporting that the child had been fed curdled milk during a visit with the father. DSS officials also received word that the father had told the Parsons counselor that he wanted to be alone and feel secure knowing that the child's mother could care for Alex Ryan, Jr., which both Parsons and DSS staff interpreted as expressing his lack of interest in obtaining custody.

Mr. Ryan responds by characterizing these complaints as "petty and benign", and contends that the foster mother was seeking to make him look bad in the eyes of DSS in order to maintain custody of the child. Plaintiffs further note that some of the missed appointments were attributable to the schedules of others, including the foster mother and social services personnel, and other cancelled visits were due to his job responsibilities. Finally, Mr. Ryan denies ever expressing a lack of interest in obtaining custody of his son.

Ms. Boyko wrote to Mr. Ryan on September 20, 1996 to inform him of the evaluator's recommendation for urine screening every two weeks, based on his differing accounts of drug usage, discrepancies in the background information that he provided and his hasty exit from the facility without providing a second urine sample. However, the letter noted that drug treatment was not recommended. The letter also discussed a schedule for weekend visitation.

By October 1996, the father had declined further preventive services from Parsons. Sometime thereafter, his visits with his son became more sporadic. In January 1997, the father again petitioned Family Court for custody of his son, but the petition was dismissed due to his failure to complete a 12-week substance abuse program.

In a substance abuse evaluation prepared in April 1997, St. Peter's Addiction Recovery Center ("SPARC") reported to DSS that Alex Ryan, Sr. was not a drug user. Nonetheless, SPARC recommended drug education based on the mother's drug use during pregnancy. DSS officials subsequently were notified by SPARC counselors that the father refused to attend the recommended education program. [*5]

Also in April 1997, the father tested positive for the presence of marijuana. Mr. Ryan unsuccessfully sought to obtain copies of the positive drug test. In a deposition taken in connection with this litigation, plaintiff admitted that he had smoked one "joint". This was the only positive drug test during the relevant time period.

Defendant Boyko wrote to Family Court on April 30, 1997, requesting another extension of DSS custody over the child. The letter informed the Court that DSS was working on a permanency plan for the child that included termination of "his parents' rights". The letter further informed the Court that while the father had been having unsupervised visitation with his child, future visits would be supervised based on Mr. Ryan's known drug use and his lack of involvement in a substance abuse treatment program.

A discharge summary report prepared by Parsons at the end of May 1997 stated that Mr. Ryan had been referred by DSS for preventive services to help unite him with his son. After several months, however, he declined further preventive services. The report stated that DSS had concerns about Mr. Ryan's ability and willingness to care for his son. The report also noted that the father is deeply mistrustful of DSS and "the system" and indicated that he could not form a relationship with the prevention worker due to this deep mistrust. Finally, the report noted that a "TPR [a petition to terminate parental rights] is pending against Mr. Ryan . . . ."^[FN4]

In June 1997, DSS transferred primary responsibility for the Ryan case from defendant Carol Boyko to defendant Timothy Kircher. While only limited details are available regarding the period from mid-1997 through early 1998, the record discloses that on December 23, 1997, the father's petition against DSS was dismissed by Family Court based on his failure to attend preventive services at Parsons. This is consistent with Family Court's later statement that the father "has continually filed petitions in [Family Court] that [were] dismissed due to his unwillingness to partake in services recommended by [DSS]".

The mother's parental rights to Alex Ryan, Jr. ultimately were terminated upon a finding of abandonment in an order of Family Court dated November 24, 1997. The order did not refer to the father and, in fact, authorized and empowered DSS to consent to the child's adoption.

In March 1998, DSS received a report from St. Catherine's Center regarding Mr. Ryan's involvement in its preventive services program. This evaluation reported that Mr. Ryan was defensive, denied needing parenting services to help him with his son and felt betrayed by the failure of the judicial and social services system to reunite him with his child, despite his participation in anti-drug programs. This report also expressed the view that Mr. Ryan sometimes demonstrated age-inappropriate expectations for his son. Based on alleged incongruence between Mr. Ryan's belief that he did not need assistance and the service provider's reports of unrealistic expectations for his son, his extreme defensiveness and the limited available history, the report recommended a complete mental health evaluation of Mr. Ryan.

During the period from the mid-1997 through mid-1998, DSS workers reported that Mr. Ryan was inconsistent in visiting his child. Mr. Kircher claims that the father missed about one-half of the scheduled visits. Plaintiffs disagree, contending that far fewer visits were missed, and many of the missed visits were due to the schedules of other participants in the supervised-[*6]visitation process.

On March 16, 1998, the father filed his final custody petition. At the initial appearance on the petition following the appointment of counsel for the father, Family Court adjourned the matter so that the father could undergo a psychological evaluation, scheduled for May 1, 1998.

At the next appearance, DSS recommended, and Family Court ordered, that an extensive family assessment be conducted at Parsons, and also that the father submit to a full mental health evaluation. Although expressing considerable frustration with the repeated obstacles that Family Court was placing in his path, the father nonetheless agreed to cooperate.

Finally, at an October 15, 1998 Family Court appearance, the father's counsel expressed dissatisfaction with continuation of the outstanding visitation arrangement, which permitted the father only one hour of supervised visitation each week. Those comments caused Family Court to recall a prior occasion when the father had called him and other court personnel "white devils" and then pointedly ask whether the father wanted to continue with supervised visitation at St. Catherine's Center. The father responded by stating that he was not being treated fairly in Family Court and expressing the desire that the matter go "in front of another judge". At that point, Family Court summarily dismissed the petition. The subsequent order of dismissal recited that the petition was dismissed because "petitioner has withdrawn the petition [and] ... does not [wish] to cooperate with services at St. Catherine". The father appealed.

During this period, defendant Kircher claims that the father remained inconsistent in visiting his son, again only attending about one-half of the scheduled visits. Further, he claims that Mr. Ryan persisted in refusing to obtain the counseling and other preventive services recommended by the various evaluators. Finally, Mr. Kircher notes that the father failed to attend an important November 1998 meeting regarding permanency planning for the child. The father again contends that DSS officials substantially overstate the number of missed visits, and some portion of the missed visits were due to the schedules of others.

Also during this period, DSS was also working on a petition to terminate Alex Ryan, Sr.'s parental rights with respect his son. Apparently, the DSS employee assigned to draft the petition, Jeff Kennedy, had some difficulties in preparing the petition, as shown in the following email to defendant Kircher:

The TPR for Alex has proven to be a difficult one to draft. The efforts are clear Crossroads, St. Catherine's Prevention and Visitation program, permanency planning and transportation assistance. The problem are the failures. He successfully completed the Crossroads program. He attends although sporadically the St. Catherine's prevention program. I am not clear what the issues are that require prevention services. He had 5 hours unsupervised weekly visits prior to testing positive for marijuana in April 1997. He has completed the Crossroads program and according to the most recent UCR remains clean and sober. Why then were the unsupervised visits not restored (other than him rubbing the Judge the wrong way)? What exactly are his parenting deficiencies? How has he failed to remedy these deficiencies?

As for visitation, my review of the case record reveals that Ryan attended 24 or 36 visits since January 1998. It is true he only attended 13 or 26 since May 1998, however we have to look back on an entire year. Clearly, he has maintained contact. [*7]

Can you provide a list of what you believe are the failures of the respondent to plan. Refusing to cooperate with Parsons last January is a failure, but it should be presented in terms of the reasons we wanted him to cooperate with the Parsons Prevention Program.

Defendant Kircher responded as follows:

CT-3 more education about child development

C-2 Alex Jr. has been anxious around his father

Inconsistent w/ visitation; states visits inconvenient

Blames D.S.S. for son being in foster care

Takes no responsibility

No shows TR on Permanency Planning Meeting

In January 1999, DSS filed a petition with Family Court, signed by defendant Kircher, seeking to terminate the father's parental rights pursuant to Social Services Law § 384-b (7) (a) based upon the father's alleged failure, from the birth of the child in 1995 through the filing of the petition, to plan for the future of the child by failing to meaningfully, substantially or consistently participate in the various programs that had been recommended and/or directed by DSS and Family Court, and by continuing to deny that such programs were necessary.

At the ensuing fact-finding hearing, plaintiff's counsel made an opening statement outlining the father's defense that he continuously had shown an interest in obtaining custody of the child, that he had never been charged with the abuse or neglect of any child and that he was "contesting the basis over which [DSS and Family Court] ha[d] imposed the conditions ... which he is presently charged with refusing to comply with and which form the basis of the ... petition". DSS offered no evidence of any objectionable conduct on the father's part or demonstrated any deficiencies in his parenting ability that would have justified the mandated services. Further, although the father and his counsel made repeated efforts to establish the absence of any such factors, Family Court strictly limited the evidence to the extent of the father's participation in mandated services during the six-month period immediately preceding the filing of the petition.

At the conclusion of the fact-finding hearing, Family Court made a summary finding of permanent neglect, setting forth the rationale that "consider[ing] [the father's] failure to utilize available services and his failure to take steps to correct problems which initially led to the child's removal ... [t]he testimony amply demonstrates [the father's] failure to plan for the future of his child".

On appeal from Family Court's denial of the custody petition, the Third Department held as follows:

In our view, Family Court's fundamental error (and DSS' complicity cannot be overlooked) . . . was in impliedly charging the father with conduct committed by the mother. In fact, the records . . . reveal no evidence that the father would not be a proper custodian for the child or that the child would be at risk in his custody. To the contrary, despite Family Court's limitation on the evidence received, the record generally supports a finding that the father is qualified to serve as a custodian for the child.

As earlier noted, the father did not live with the mother at the time of the child's birth and [*8]there is no evidence that he shared her cocaine habit. Indeed, there is some reason to believe that he refused to live with her because of her drug dependency. The father was not named as a respondent in the neglect and abandonment petitions that were filed against the mother and no findings were made as to him. As for the father's drug use, the record discloses only that he used marihuana on one occasion and thereafter voluntarily participated in and completed a 16-week drug rehabilitation program. There is no evidence of any other history of drug or alcohol abuse or that the father had ever been convicted of a crime, and it appears that he was regularly employed as a construction worker during the period at issue. Contrary to DSS' consistent position that the father had no child-rearing experience, the record establishes that he lived with his fiancee and her five children and, in fact, that his initial association with his fiancee was as her babysitter. Further, Mary Purdy, a permanency clinician and consultant at Parsons Child and Family Center, testified that the father had been found to be an appropriate custodian of another infant son of his. Perhaps most telling are the following statements from Purdy's October 14, 1998 family assessment:

[The father] reports that he completed his [drug] treatment and has the proper documentation corroborating this claim. He also has completed parenting classes and he reports a satisfactory status with the prevention program at St. Catherine's. This consultant became puzzled then by the decision of others i.e. the court, DSS as well as [the mother] and her family to either prevent or limit [the father's] contact with his sons.

That assessment was received by Family Court on the same day that it dismissed the [the father's custody] petition . . . . DSS ha[s] made no demonstration (or even allegation) of the father's "surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" justifying the State's intrusion into the family domain.

(Alex LL v. Albany County Dept. of Social Services,270 AD2d 523, 526-27 [3rd Dept 2000]).

With respect to Family Court's order terminating Mr. Ryan's parental rights, the Third Department held as follows:

[T]he critical issue is whether DSS met its burden of establishing that the plan it prescribed for the father was "realistic and tailored to fit [his] individual situation" ( Matter of Jesus JJ., 223 AD2d 955; see, Matter of Jessica UU., 174 AD2d 98). As earlier noted, DSS made no effort to satisfy that burden and Family Court repeatedly thwarted the father's efforts to establish the lack of any reasonable basis for the plan that was put in place. Of course, given that the child never was taken from the father and no valid reason has been shown for denying the father custody in the first instance, we believe that DSS had little hope of identifying any circumstances preventing the "return" of the child to his custody. The issues identified in the petition, i.e., that the father never had custody of the child and his history of alcohol/substance abuse, lack of parenting skills and failure to consistently visit the child, all relate to matters that had no valid basis in fact, were wholly outside the father's control or had no realistic bearing on his competence as a custodial parent. Obviously, the petition should have been dismissed at the conclusion of DSS' case, if not earlier.

(id. at 527-28).

Following the decision of the Third Department, the father was granted sole legal and [*9]physical custody of Alex upon the consent of defendants and with the recommendation of the Law Guardian representing the child. An order reflecting this determination was entered May 23, 2000. A subsequent petition by the foster mother to vacate this order and continue to exercise custody over the child was dismissed pursuant to an April 2002 decision of the Third Department (see Matter of Harriet II. v. Alex LL., 292 AD2d 92 [3rd Dept 2002]).

This action was commenced on or about August 8, 2001, and a complaint was filed on or about March 21, 2002. Defendants filed an answer on or about May 2, 2002 and an amended answer on or about May 6, 2002. Defendants moved for summary judgment dismissing the complaint in January 2007, and this Decision & Order follows.

PERSONAL JURISDICTION

Defendant Timothy Kircher moves for dismissal of the claims against him, based on lack of personal jurisdiction. In an affidavit submitted in connection with this motion, Mr. Kircher avers that he was never served with the summons and complaint in this matter. At oral argument held on this motion on June 1, 2007, plaintiffs' counsel conceded as much. Given that defendant preserved his jurisdictional objection in the amended answer (see CPLR 3211 [e]) and in the absence of any dispute regarding lack of service of process, defendant Kircher must be dismissed from this action.

JUDICIAL IMMUNITY ON FEDERAL CLAIMS

A.Precedent of the U.S. Supreme Court42 USC 1983 ("Section 1983") provides as follows: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Section 1983 is "to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them" (Imbler v. Pachtman, 424 US 409, 418 [1976]). Accordingly, the absolute immunity enjoyed by judges at common law was held to have been preserved under Section 1983 (Pierson v. Ray, 386 US 547, 553-55 [1967]).

Prosecutors also are entitled to absolute immunity in connection with actions "intimately associated" with the judicial process (see Imbler. 424 US at 430). In adopting this "functional" approach to claims of judicial immunity, the Court reasoned:

The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.

(id. at 422-423). The Imbler decision did not, however, consider the extent to which absolute immunity would be available in connection with "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate" (id. at 430-31).

Later decisions "confirmed the importance to the judicial process of protecting the prosecutor when serving as an advocate in judicial proceedings" (Kalina v. Fletcher, 522 US 118, 125 [1997]; see e.g. Burns v. Reed, 500 US 478 [1991]; Buckley v. Fitzsimmons, 509 US [*10]259 [1993]). However, when a prosecutor assumes the function of a "complaining witness" by signing an affidavit attesting to the facts supporting the issuance of a warrant, such actions are not protected by judicial immunity (Kalina, 522 US at 127).

In addition to a functional analysis, courts faced with claims of absolute immunity under Section 1983 are required to undertake "a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it" (Imbler, 424 US at 421). Thus, in Antoine v. Byers & Anderson (508 US 429 [1993]), the Supreme Court rejected a claim of judicial immunity asserted by a court reporter based, in part, on the absence of any common law tradition of immunity for persons performing such a function (id. at 433-34).

While the Supreme Court has not directly spoken to the issue of whether social workers are entitled to absolute immunity in connection with lawsuits arising out of their child protective functions, two Justices have expressed considerable hostility towards such claims of immunity, stating:

[A]n official seeking immunity must at the outset show that a "counterpart to the privilege he asserts" was recognized at common law in 1871 . The courts that have accorded absolute immunity to social workers appear to have overlooked the necessary historical inquiry; none has seriously considered whether social workers enjoyed absolute immunity for their official duties in 1871. If they did not, absolute immunity is unavailable to social workers under § 1983. This all assumes, of course, that "social workers" (at least as we now understand the term) even existed in 1871. If that assumption is false, the argument for granting absolute immunity becomes (at least) more difficult to maintain.

(Hoffman v. Harris, 511 US 1060, 1062-63 [1994] [Thomas, J., dissenting from denial of certiorari]).

B.Second Circuit Precedent

In Walden v. Wishengrad, 745 F2d 149, 152 (2d Cir 1984), the Second Circuit held that an attorney representing a child protective agency in a Family Court proceeding was entitled to absolute immunity for her advocacy work, stating:

As a Department attorney, [defendant] initiates and prosecutes child protective orders and represents the interests of the Department [of Social Services] and the County in Family Court. As such, her duties are similar to those of a prosecutor, who acts "as an advocate for the State" in criminal matters. The Department's responsibilities for child protection are similar in importance to the prosecutor's office's responsibilities in the criminal justice system. Given the importance of the Department's activities, the need to pursue protective child litigation vigorously and the potential for subsequent colorable claims, [defendant] should be accorded absolute immunity from claims arising out of the performance of her duties. She must be allowed to perform her duties free from fear of potential lawsuits by individuals allegedly harmed by her actions.

However, "[t]he investigation of charges of child abuse and the removal of a child from its parents' custody is accorded only qualified protection" (Robison v. Via, 821 F2d 913, 919-20 [2d Cir 1987]). The Second Circuit rested this conclusion on three bases. First, it determined that such activities are not "intimately associated with the judicial phase" to an extent that necessitates absolute immunity (id.). Second, it relied upon the absence of any comparable immunity at common law, observing that without such a tradition, a defendant "will have a most [*11]difficult task in seeking to persuade us that there are compelling policy considerations necessitating the grant of absolute immunity"(id.). Finally, the Second Circuit reasoned that in light of the enormous power over children and families exercised by child welfare officials, "society as a whole will benefit more from according investigations of alleged child abuse only a qualified immunity" (id.).

C.Precedent from Other Circuit Courts of Appeal

A number of other Circuit Courts of Appeal have considered the extent to which child protective workers are entitled to judicial immunity and adopted a more expansive approach than the Second Circuit. Thus, in Ernst v. Child & Youth Servs. (108 F3d 486, 495-496 [3d Cir 1997]), the Third Circuit held that:

The [child welfare defendants] are entitled to absolute immunity for their actions on behalf of the state in preparing for, initiating, and prosecuting dependency proceedings. Their immunity is broad enough to include the formulation and presentation of recommendations to the court in the course of such proceedings. We reach this conclusion because (1) the functions performed by the . . . defendants in dependency proceedings are closely analogous to the functions performed by prosecutors in criminal proceedings; (2) the public policy considerations that countenance immunity for prosecutors are applicable to child welfare workers performing these functions; and (3) dependency proceedings incorporate important safeguards that protect citizens from unconstitutional actions by child welfare workers.

However, several other Circuits have joined with the Second Circuit in adopting a more limited view of judicial immunity in the child welfare context (see e.g. Snell v. Tunnell, 920 F2d 673 [10th Cir 1990]; Austin v. Borel, 830 F2d 1356 [5th Cir 1987]).

Recently, the Ninth Circuit issued an en banc decision overruling precedent that had extended absolute immunity to actions taken in "connection with" and "incident to" ongoing child dependency proceedings (see Miller v. Gammie, (335 F3d 889 [9th Cir 2003] [en banc]). The Ninth Circuit heldthat absolute immunity must be limited to cases in which "defendants establish that their respective common-law functional counterparts were absolutely immune" and articulated the following mode of analysis:

Here, the district court was obligated to examine the functions [defendant social workers] performed; however, those functions were unclear. Moreover, the defendants bear the burden of showing that their respective common-law functional counterparts were absolutely immune. It would appear that the critical decision to institute proceedings to make a child a ward of the state is functionally similar to the prosecutorial institution of a criminal proceeding. The decision, therefore, is likely entitled to absolute immunity. It also may be that some submissions to the court by social workers are functionally similar to the conduct recognized at common law to be protected by absolute prosecutorial immunity.

To the extent, however, that social workers also make discretionary decisions and recommendations that are not functionally similar to prosecutorial or judicial decisions, only qualified, not absolute immunity, is available. Examples of such functions may include decisions and recommendations as to the particular home where a child is to go or as to the particular foster parents who are to provide care. On this record, we cannot make that determination. However, such [*12]placement decisions may not be "judicial" or "prosecutorial"

decisions of the type that would have enjoyedcommon-law absolute

immunity.(id. at 898-99).

The analytical framework set forth in Miller v. Gammie is in accord with relevant Second Circuit precedent, including Walden and Robison, and reflects both the historical and functional analysis mandated by applicable Supreme Court precedent.

D.Analysis of Defendants' Claim of Judicial Immunity

The Court begins, as it must, with the presumption that qualified immunity is sufficient to protect defendants in the exercise of their duties (see Wilkinson ex rel. v. Russell, 182 F3d 89, 99 [2d Cir 1999]), and that defendants bear the burden of demonstrating an entitlement to absolute immunity (Butz v. Economou, 438 US 478, 506 [1978]). With that in mind, the critical inquiry is whether the functions performed by defendants were protected by absolute immunity at common law (see Antoine, 508 US at 433-34).

The primary injury alleged by plaintiffs supported by a variety of constitutional and statutory theories is unjustified interference with the right of Alex Ryan, Sr. to raise his natural child, Alex Ryan, Jr. (and the corresponding right of the son to be raised by his father). The determinations to place the child in DSS custody, to deny the father's numerous petitions for custody, and ultimately to terminate the father's parental rights were that of Family Court, through a series of orders issued from July 1995 through June 1999. Plaintiffs nonetheless contend that defendants can be held liable for their role in procuring such orders from Family Court. Further, plaintiffs allege that defendants engaged in other conduct giving rise to liability that was not done pursuant to express court order. Each of the specific functions performed by defendants allegedly giving rise to liability will be considered in turn.

1.Filing of Petitions in Family Court

During the relevant time period, defendants filed petitions with Family Court seeking to place Alex Ryan, Jr. in their custody and to continue such custody. Defendants also filed a petition to terminate Alex Ryan, Sr.'s parental rights. The initiation and prosecution of a proceeding by a child protective agency is protected by absolute immunity, since child welfare officials are engaged in a function that is similar to that of prosecutors, for which immunity was provided at common law (Walden v. Wishengrad, 745 F2d at 152; see also Kalina, 522 US at 126-27).

2.Evidentiary Submissions and Recommendations to Family Court

Defendants are not protected by absolute immunity in connection with the evidentiary submissions and programmatic recommendations that they provided to Family Court. In Kalina, the Supreme Court made clear that the actions of a prosecutor signing an affidavit attesting to the facts supporting the issuance of a warrant are not protected by absolute immunity (see 522 US at 130-31). The Court reasoned that the "evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause," and does not enjoy the same absolute immunity as "preparation and filing of an information and a motion for an arrest warrant" (id.). Thus, as counsel for defendants acknowledged at oral argument, defendants are not protected by absolute immunity in this regard.

3.Evaluations / Preventive Services Requirements

During relevant time periods, defendants required Alex Ryan, Sr. to obtain a number of [*13]evaluations, including drug assessments, drug screenings and mental health evaluations. Further, defendants required Mr. Ryan to participate in a variety of programs, including anti-drug education programs and parenting classes, ostensibly directed at uniting him with his son.

In considering these functions, it is necessary to begin with the initial requirement for Alex Ryan, Sr. to complete a substance abuse evaluation and psychological assessment, which were embodied in the July 6, 1995 order of Family Court. While state law provides absolute immunity to neutrally positioned government officials who perform functions pursuant to court order (see Mosher-Simons v County of Allegany, 99 NY2d 214, 219-20 [2002]), neither the Supreme Court nor the Second Circuit have spoken directly to whether similar immunity is available under Section 1983.

It appears, however, that federal law would provide similar immunity to government officials specifically directed to act by a facially valid court order (see Wolfe v. City of Pittsburgh, 140 F3d 236, 240 [3d Cir 1998]; Richman v. Sheahan, 270 F3d 430, 437 & n 4[7th Cir 2001]; Levine v. Lawrence, 2005 U.S. Dist. LEXIS 11663, 29 [EDNY]). However, a claim that such conduct was not specifically directed or that the official exceeded the scope of the order or otherwise executed the order in a manner inconsistent with the court's directive may give rise to liability (see Richman, 270 F3d at 437-38; Levine, supra, at 29-30). Thus, defendants' actions in requiring the initial substance abuse assessment and psychological evaluation are protected by absolute immunity.^[FN5]

Other than these initial court-ordered evaluations, defendants' role in requiring the father to obtain professional evaluations and obtain preventive services is not protected by judicial immunity. These actions were not taken pursuant to any specific court order; rather, they reflected a considerable degree of discretion on the part of child welfare officials charged with the statutory responsibility of uniting Mr. Ryan with his child in foster care.

Thus, in requiring Mr. Ryan to obtain a psychological assessment, Family Court certainly may have contemplated that the father would be required to obtain the services recommended as a result of such assessment. However, there is no express order of Family Court at least not in the record before this Court that required the father to obtain such services. The same is true of the anti-drug education program required by defendants following the court-ordered substance abuse evaluation, the demand for a second substance-abuse evaluation following the father's failure to complete the 12-week program recommended in the first evaluation, and the requirements of bi-weekly urine screening. In all of these situations, defendants went beyond merely implementing the terms of express judicial orders.

This is not say as plaintiffs contend that defendants violated the extant Family Court orders by so doing or were required to return to Family Court prior to taking such actions. While these issues are discussed infra, in connection with the individual defendants' claim of qualified immunity, the issue at this stage of the analysis simply is whether defendants are entitled to [*14]judicial immunity for the function of requiring Alex Ryan, Sr. to participate in various evaluations and obtain the preventive services recommended as a result of such evaluations. In the absence of an express court order specifically directing these actions or a showing that such actions are functionally comparable to ones for which officials were rendered immune at common law, the Court concludes that defendants have not demonstrated an entitlement to immunity.

4.Establishing Terms & Conditions of Visitation

During relevant time periods, defendants are alleged to have deprived Mr. Ryan of the right to visit his child while in foster care. The issue of visitation was addressed in the July 6, 1995 order of Family Court, wherein the father temporarily was granted supervised visits with the child, upon his completion of a substance abuse evaluation and psychological assessment. Thereafter, the terms and conditions of visitation, including whether the visits were supervised or unsupervised, were established by DSS personnel, with periodic notification to Family Court.

Thus, in a letter to Family Court on April 30, 1997, defendant Boyko informed the Court, inter alia, that while the father had been having unsupervised visitation with his child, those visits would revert to supervised visits based on the positive drug test and Mr. Ryan's unwillingness to participate in additional substance abuse treatment.^[FN6] Defendants also played a role in monitoring plaintiff's compliance with the prescribed terms and condition of visitation.

The Court concludes that defendants are not entitled to absolute immunity for their conduct in establishing the terms and conditions of visitation and in monitoring compliance therewith. Other than the initial temporary order conditioning supervised visitation on the completion of the certain assessments, defendants' role with respect to visitation was not done pursuant to express court direction and is not functionally similar to activities protected by absolute immunity at common law.

5.Other Activities

Plaintiffs also identify a variety of other actions and omissions supporting their theories of liability. One such functional area is permanency planning, where plaintiffs allege that defendants failed to make appropriate efforts to unite father and child. Another broad functional area relates to the allegedly faulty investigations of Mr. Ryan. Finally, plaintiffs complain that defendants failed to communicate adequately and keep Mr. Ryan informed of relevant matters.

It is clear that these types of activities are not protected by absolute immunity. There is no specific directive of Family Court that compelled defendants' activities in this regard. Nor can defendants identify a functional counterpart who would be provided judicial immunity at common law while engaged in such activities (see e.g. Hartman v. Moore, 547 US 250, n 8 [2006]).

VIABILITY OF FEDERAL CLAIMS

Having determined that many of the functions performed by defendants are not protected by absolute immunity, the Court must then consider whether defendants are protected by qualified immunity. The threshold inquiry for a court ruling upon a claim of qualified immunity, however, is whether the facts alleged, taken in the light most favorable to plaintiffs, show that [*15]defendants' conduct violated a federally protected right (Saucier v. Katz, 533 US 194, 201 [2001]). On a motion for summary judgment, the issue then is whether defendants have demonstrated an entitlement to judgment as a matter of law. If they have, there is no need for any further inquiries concerning immunity (id.).

It is well established that summary judgment is a drastic remedy and should only be granted if there are no material issues of disputed fact (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). In evaluating a motion for summary judgment, a court should decide whether material issues of disputed fact preclude the grant of judgment as a matter of law (S. J. Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338 [1974]). The party moving for summary judgment has the initial burden of coming forward with admissible evidence to support the motion, so as to warrant the Court directing judgment in movant's favor; the burden then shifts to the opposing party to demonstrate, by admissible evidence, the existence of any factual issue requiring a trial of the action (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

A.Substantive Due Process

The first federal cause of action asserted by plaintiffs is interference with the father's fundamental liberty interest in raising his child (and the corresponding right of the child to be raised by his parent), as guaranteed by the Fourteenth Amendment of the U.S. Constitution. Plaintiff contends that as a proximate result of defendants' unlawful interference with this liberty interest, he and his son have suffered substantial monetary, emotional and psychological damage.

In the complaint, plaintiffs contend that defendants "conducted a grossly insufficient and unprofessional investigation of this case, thereby imposing illogical loopholes for the Plaintiff to meet in order to obtain the rightful custody of his son which should have been his immediately, as he was never an unfit parent' as defined by the relevant law . . . ." Though required by law to take any reasonable steps or efforts to prevent the removal of a child from his natural parents, plaintiff alleges that the entire DSS agenda in this case was tailored towards termination of plaintiff's parental rights, and it attempted to do so through the imposition of "illogical standards, regulations and guidelines with boilerplate requirements not tailored to meet the needs of the specific individuals at hand." This, plaintiffs contend, represents a gross deviation from acceptable professional conduct and was not directed at furthering the best interests of the child. "While [defendants are] afforded quasi-immunity from suit, in this case, the boundaries of their partial immunity have clearly been exceeded long ago."

Plaintiffs also allege an implied policy of removing and detaining children from their parents without probable cause and without due process, a policy that has come about as a result of inadequate training and supervision of DSS case workers. Plaintiffs contend that the municipal defendants were aware of the unlawful and continuous practice of DSS caseworkers interfering with the rights of parents to raise their children free from state intrusion. The complaint alleges that nothing was done to curtail this, and it became an implied policy of the municipal defendants. Further, plaintiffs allege that the municipal defendants were aware that their failure to adopt an appropriate policy in this regard would cause DSS employees to remove and detain children without probable cause and the provision of due process.

The Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." Its substantive component "protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them (Interport Pilots Agency, Inc. v. Sammis, 14 [*16]F3d 133, 144 [2d Cir 1994] [internal quotation and citation omitted]).

The first step in the substantive due process analysis is to identify a constitutionally protected liberty interest, based on review of our Nation's history, legal traditions and practices (see Washington v. Glucksberg, 521 US 702, 720-21 [1997]). The Second Circuit, relying on U.S. Supreme Court authorities, has "described the interest of a parent in the custody of his or her children as a fundamental, constitutionally protected liberty interest'" (Kia P. v. McIntyre, 235 F3d 749, 758 [2d Cir 2002], quoting Gottlieb v. County of Orange, 84 F3d 511, 518 [2d Cir 1996]; see also Tenenbaum v. Williams, 193 F3d 581, 600 [2d Cir 1999] [family has, "in general terms, a substantive right under the Due Process Clause 'to remain together without the coercive interference of the awesome power of the state,'" quoting Duchesne v. Sugarman, 566 F2d 817, 825 [2d Cir 1977]; Wilkinson v. Russell, 182 F3d 89, 103 [2d Cir 1999] ["It has long been settled in this Circuit 'that a parent's interest in the custody of a child is a constitutionally protected liberty interest subject to due process protection'", quoting Cecere v. City of New York, 967 F2d 826, 829 [2d Cir 1992] [alteration in original]).

However, the right of a willing natural parent to raise his child is not an unqualified one. "No matter how important the right to family integrity, it does not automatically override the sometimes competing compelling government interest in the protection of minor child, particularly in circumstances where the protection is considered necessary against the parents themselves" (Kia P, 235 F3d at 758 [internal quotation omitted]). Thus, the government may take steps to protect a child against an unfit, abusive, or neglectful parent. Nonetheless, it is clear that the liberty interest asserted by plaintiffs here is one protected against arbitrary deprivation or interference.

Having established a protected liberty interest, plaintiffs must then demonstrate that the deprivation was the product of action "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience" (County of Sacramento v. Lewis, 523 US 833, 847; Pena v. Deprisco, 432 F3d 98 [2d Cir 2005]). In other words, plaintiffs must demonstrate that their separation from one another was " so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protections" (Anthony v. City of New York, 339 F3d 129, 143 [2d Cir 2003], quoting Tennenbaum, 193 F3d at 600-601).

At one end of the spectrum, it is clear that "negligently inflicted harm is categorically beneath the threshold of constitutional due process" (Lewis, 523 US at 849). On the other end, it is equally clear that intentional deprivations are actionable (see Pena, 432 F3d at 111-12; see Lewis, 523 US at 849). Intermediate levels of culpability make for "closer calls" (id.).

During non-emergency situations, where there is time for reflection and a reasoned decision, deliberate indifference to a fundamental right may shock the conscience (id.). Thus, in Pena, the Second Circuit concluded that police officials' disregard of the danger posed by off-duty officers who drink and drive, over an extended period and in the face of action that presented an obvious risk of severe consequences and extreme dangers, could be considered "conscience shocking, in a constitutional sense" (Pena, 432 F3d at 114). "Whether termed deliberate indifference' or recklessness', this mental state is sufficient to establish liability in such cases because it requires proof that the defendant focused upon the risk of unconstitutional conduct and deliberately assumed or acquiesced in such risk" (id.).

Based on the foregoing, the Court concludes that in order to succeed on their substantive [*17]due process claims, plaintiffs must demonstrate that defendants were deliberately indifferent to, or acted in reckless disregard of, the father's right to raise his child free of State interference absent proof of neglect, abuse or unfitness (and the corresponding right of the child to be so raised).

1.Caseworker Liability

Viewing the evidence in the light most favorable to plaintiffs, the Court concludes that plaintiffs have succeeded in raising triable issues of fact regarding the liability of defendant Carol Boyko, the primary DSS case worker from mid-1995 through June 1997, and Elizabeth Romeling, the direct supervisor of DSS case workers during relevant time periods, on the claimed substantive due process violations.^[FN7]

While DSS officials argue that all of their actions were done pursuant to court order, the discussion of absolute immunity supra makes clear that defendants went well beyond merely carrying out the express directives of Family Court. Some of the pertinent orders conferred considerable discretion upon defendants with respect to the manner in which they were carried out. In other areas, defendants went beyond Family Court's express requirements. With respect to certain other activities, defendants primarily were executing their statutory responsibilities under the Social Services Law, rather than carrying out the terms of a court order. Further, although the ultimate deprivations of plaintiffs' protected liberty interest were the product of Family Court's determinations and orders, DSS officials always recommended further foster-care placements of the child, failed to recommend unsupervised visits, recommended additional and unnecessary preventive service requirements and failed to recommend uniting father and son.

Viewing the evidence in a light most favorable to plaintiffs, the trier of fact could conclude that Family Court's orders were a natural consequence of defendants' actions and, therefore, liability under Section 1983 may attach (see Warner v. Orange County Dept. of Probation, 115 F3d 1068, 1071 [(2d Cir 1997]); Malley v. Briggs, 475 US 335, 344 n 7 [1986]). Under Second Circuit decisional law, "an actor may be held liable for those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties" (Warner, 115 F3d at 1071 [internal quotation marks omitted]). "The fact that the intervening third party may exercise independent judgment in determining whether to follow a course of action recommended by the defendant does not make acceptance of the recommendation unforeseeable or relieve the defendant of responsibility" (Kerman v. City of New York, 374 F3d 93, 126-127 [2d Cir 2004], citing Malley, 475 US at 338-39, 344 n 7 [judge's decision to issue an arrest warrant does not break the causal chain between an officer's improvident application for the warrant and the ensuing arrest] and Warner, 115 F3d at 1073 & n 4 [probation department may be held liable for recommending a probationary program that was unconstitutional, notwithstanding the fact that the sentencing judge made his own determination whether to accept the recommendation]).

Further, as plaintiffs contend, it appears that from the earliest stage of these proceedings, [*18]Mr. Ryan was treated as an afterthought. From the very first neglect petition, the papers filed by DSS failed to give serious consideration to the prospect of Mr. Ryan obtaining custody of his child. Despite having filed a custody petition for his child in late June 1995, DSS officials did not even contact him until October 1995 regarding the possibility of supervised visitation with his child.

Similarly, plaintiffs point to defendant Boyko's letter to Family Court dated April 30, 1997, in which she requested another extension of the placement and custody over the child. This letter, written at a time when DSS officials ostensibly were working to unite Alex Ryan, Jr. with his father, informed the Court that DSS currently is working on a permanency plan for the child that includes termination of his "his parents' rights" (emphasis added). Further, even when other DSS officials and outside evaluators raised concerns about the legal and factual basis for denying Mr. Ryan unsupervised visitation, custody and ultimately his parental rights, defendants persisted.

In response, defendants offer a number of justifications for their actions, including: reasonable reliance on third party evaluations of Mr. Ryan; plaintiff's own statements that he did not wish to obtain custody of his child, as well as his alleged lack of interest in parenting another child in foster care; the failure of Mr. Ryan to participate in the prescribed evaluations and programming; and Mr. Ryan's failure to regularly attend scheduled visitation. Defendants also contend that there is nothing in the record demonstrating that they ever knowingly provided false information to Family Court. While defendants' proof in this regard will be examined in greater detail with respect to their assertion of qualified immunity, it is not sufficient to establish defendants' entitlement to judgment as a matter of law on the substantive due process claim.

Clearly, the decision of the Third Department conclusively establishes that there was no legal basis for depriving Alex Ryan, Sr. of the custody of his child. Further, while the Court agrees with defendants that they were entitled to a reasonable opportunity to ensure that the father did not pose a danger to the health or welfare of the child prior to seeking to unite them, a reasonable trier of fact could conclude that the individual defendants manifested deliberate indifference to, or reckless disregard of, the father's liberty interest in raising his child, based on their apparent long-term disregard of the primacy of the father-son relationship and their role in the five-year cycle of drug assessments, drug screening, drug rehabilitation programs, psychological and mental health evaluations, parenting classes, supervised visitation, protracted Family Court litigation and continual governmental interference with the father-son relationship all in the absence of proof that Alex Ryan, Sr. was, had ever been, or would be an unfit, neglectful or abusive parent.

In sum, the Court concludes that viewing the evidence in the light most favorable to plaintiffs, a reasonable trier of fact could find the individual defendants' conduct in keeping father and son apart for five years under the circumstances presented by this case to be "conscience shocking, in a constitutional sense."

2.Municipal Liability

A municipality cannot be held vicariously liable under Section 1983 for the unconstitutional conduct of its employees. Rather, it may only be found liable "where the municipality itself causes the constitutional violation at question" (Canton v. Harris, 489 US 378, 385 [1989]. citing Monell v. New York Dept of Social Services, 436 US 658 [1978]). The [*19]municipality itself causes the injury when either: (1) the execution of the government's policy or custom causes the injury (Monell, 436 US at 694); or (2) the act of an employee with final policymaking authority in the particular area involved causes the injury (see St. Louis v. Praprotnik, 485 US 112, 121-23 [1988]).

Plaintiffs contend that their substantive due process rights were violated as a result of an unlawful municipal policy or custom, as well by the failure of the municipal defendants to adequately train and supervise their personnel. However, for the reasons set forth below, the Court concludes that the municipal defendants are entitled to judgment as a matter of law on these claims.

Plaintiffs have failed to demonstrate the existence of a policy or custom that caused the alleged substantive due process violations. There is nothing in the record that establishes the existence of a formal policy by the County or DSS of unjustified interference with the parent-child relationship. Indeed, the record evidence is to the contrary, demonstrating a stated policy of seeking to reunite children in foster care with their natural parents through the provision of appropriate services and supports (see e.g. Burger Aff., Exs. A and B). Nor does the record contain proof of widespread unconstitutional practices sufficient to impute constructive knowledge to the municipal defendants. Proof of a single incident or even a series of incidents involving the same individuals, such as what happened here to the Ryan family is not sufficient to establish an unconstitutional practice, policy or custom (see DeCarlo v. Fry, 141 F3d 56, 61 [2d Cir 1998]).

Similarly, plaintiffs have failed to establish municipal liability based on a failure to train or supervise its employees. To succeed on such a claim, plaintiffs must demonstrate that the need for additional or different training or supervision is so apparent, and the inadequacy is so likely to result in a constitutional violation, that the policymakers of the municipality can be said to have been deliberately indifferent to the need for training and supervision (see City of Canton v. Harris, 489 US 378 [1989]; Covell v. County of Oswego, 165 F Supp 2d 241, 250 [NDNY 2001]).

The record here demonstrates that DSS employees received substantial training regarding their responsibilities as caseworkers. It also demonstrates that the activities of defendants Boyko and other case workers were subject to ongoing supervision and oversight.^[FN8] In addition, the caseworkers relied on consultations with DSS's legal staff and the recommendations of outside professionals. Under these circumstances, plaintiffs have failed to offer sufficient proof that the County had notice of any repeated, similar constitutional violations or that the DSS Commissioner was presented with facts and circumstances that give rise to actual or constructive knowledge of the need for additional training in this regard.

B.Procedural Due Process Claims

Plaintiffs also contend that they were deprived of a protected liberty interest without having been accorded procedural due process. The Due Process Clause requires state actors to provide fair procedures before denying an individual a protected liberty interest (see Zinermon v. Burch, 494 US 113, 125-26 [1990]). [*20]

As explained supra, the deprivations of custody and parental rights complained of by plaintiffs ultimately were the product of determinations and orders of Family Court. While plaintiffs have come forward with evidence linking defendants' conduct to the substantive deprivations ordered by Family Court, they have not come forward with evidence establishing defendants' responsibility for the procedures used by Family Court. Accordingly, defendants are entitled to judgment as a matter of law on this claim.

C.Fourth Amendment Claims

Plaintiffs allege that defendants' actions in removing and detaining Alex Ryan, Jr. from his father without probable cause, based on constitutionally inadequate investigations of neglect charges, violates the Fourth Amendment of the U.S. Constitution.^[FN9] The Fourth Amendment protects "the people" from "unreasonable searches and seizures" and also provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing . . . the persons or things to be seized."

Insofar as Mr. Ryan seeks to assert a Fourth Amendment violation based on the removal of his child, such a claim is foreclosed as a matter of law. "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted" (Tenenbaum, 193 F3d 581, 602 n 13, quoting Alderman v. United States, 394 US 165 [1969]; Hollenbeck v. Boivert, 330 F Supp 2d 324, 334 n 10 [SDNY 2004]).

With respect to the claim asserted by Alex Ryan, Jr., the "Fourth Amendment applies in the context of the seizure of a child by a government agency official during a civil child-abuse or maltreatment investigation" Nicholson v Scoppetta, 344 F3d 154, 172 [2d Cir 2003]; see also Kia P., 235 F3d at 762. "The warrantless seizure of a child by government officials pursuant to a child abuse or neglect proceeding is reasonable if it is justified by 'exigent circumstances'" (Nan Sung Park, 2003 US Dist LEXIS 578, 2003 WL 133232 at * 11, citing Phifer, 289 F3d at 61). Exigent circumstances exist if the state actors "have reason to believe that life or limb is in immediate jeopardy." Phifer, 289 F3d at 61.

In this case, however, "the plaintiffs do not argue that the initial taking of Alex Ryan, Jr. was illegal, nor is it the basis for any claim in this suit" (LaFave Aff. ¶ 29). Thus, plaintiff Alex Ryan, Jr. is left with the claim that his continued retention by defendants in foster care, pursuant to orders of Family Court, represents a violation of his Fourth Amendment rights.

In Nicholson, the Second Circuit discussed whether a Fourth Amendment violation could be based on an order issued by Family Court, stating:

Finally, there is a substantial Fourth Amendment question presented if New York law does not authorize removals in the circumstances alleged. We have said previously that a Family Court order is probably the equivalent of a warrant for Fourth Amendment purposes. A warrant, of course, requires probable cause to support the seizure authorized by the warrant. While we give [*21]considerable deference to the decisions of a "neutral magistrate" in issuing a warrant (or the Family Court equivalent), our review is not a "rubber stamp." Plainly, if New York law does not authorize the removals the plaintiffs complain of, there can be no probable cause to carry out the removal.

344 F3d at 176 (internal citations and quotations omitted).

Whether the Fourth Amendment applies to the continued retention of a child after an admittedly lawful seizure is a somewhat different question. In Phifer, the Second Circuit applied this Fourth Amendment standard to the refusal of a hospital to return an allegedly neglected child to her parent (289 F3d at 60). In that case, the Second Circuit relied on Family Court's finding that the parent's interference with the child's medical treatment placed the child in imminent danger, stating that it was essentially the equivalent of a finding of exigent circumstances under Tenenbaum (id.).

Similarly, in Kia P., the Second Circuit held that "retention [of an allegedly neglected child] by a hospital "was a seizure' within the meaning of the Fourth Amendment from the time that she had been medically cleared to leave the hospital and her actual release from the hospital's custody (235 F3d at 762-63). However, the Court did not set forth the applicable standard "[w]hether such a seizure requires probable cause, or whether it is subject to a less stringent reasonableness requirement' due to the special needs' of child protection agencies, or whether a seizure must be justified by exigent circumstances'" since all three analyses yielded the same result in that case (id.; see also Tenenbaum, 193 F3d at 603-05).

Both Kia P. and Phifer addressed circumstances where the government, although not physically taking the child away from a parent, "seizes" the child by refusing to release him or her following a lawful transfer of custody. These situations unquestionably implicate the parent and child's due process rights, as well as the child's Fourth Amendment rights (see Kia P., 235 F3d at 762-63).

But, these cases are distinguishable, since they deal with the "seizure" of a child from a parent or guardian having a legal right to custody. Here, the alleged seizure of Alex Ryan, Jr. occurred at a time when custody lawfully was vested in DSS pursuant to court order. Although Alex Ryan, Jr. may have had a constitutionally protected liberty interest in being reared by his father, the fact remains that such right was an inchoate one at relevant times. Under these circumstances, it is difficult to characterize defendants' conduct to have been a "seizure" of the child within the meaning of the Fourth Amendment (see A.C. v. Mattingly, 2007 WL 894268, 6 [SDNY 2007]; Tango v. Tulevech, 61 NY2d 34, 42-43 [1983]).

Based on the foregoing and given the substantial overlap between the substantive due process and Fourth Amendment claims, the Court finds that defendants' alleged misconduct in this unique set of circumstances is more appropriately analyzed under the generalized rubric of substantive due process (cf. Tenenbaum, 193 F3d at 599-600).

D.Equal Protection Claims

Plaintiff Alex Ryan, Sr. argues that the foregoing allegations also constitute a violation of the Equal Protection Clause because he was treated differently than other similarly situated parents. To succeed on this claim, plaintiff must demonstrate that he was intentionally treated differently from other similarly situated individuals without a rational basis (Clubside, Inc. v. Valentin, 468 F3d 144, 159 [2d Cir 2006]). Further, plaintiff "must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves" (id.). [*22]

Apart from conclusory assertions of a pre-determined bias on the part of defendants, which in and of themselves are not sufficient to survive summary judgment (see Johnson v Goord, F Supp 2d 377 [SDNY 2007]), the record is devoid of evidence establishing that defendants intentionally singled out Mr. Ryan for discriminatory treatment. In addition, other than vague comparisons to the child's mother (who had her parental rights to Alex Ryan, Jr. terminated in 1997), the record fails to demonstrate a class of similarly situated persons receiving superior treatment. Accordingly, defendants are entitled to judgment as a matter of law on this claim.

E.Adoption Assistance Act

The fourth cause of action asserted by plaintiff Alex Ryan, Sr. alleges that defendants violated the U.S. Adoption Assistance & Child Welfare Act ("AACWA"), Pub. L. No. 96-272, as codified at 42 USC § 671(a). Plaintiff asserts that these provisions of law required defendants to make reasonable efforts to provide services aimed towards reunification of the family prior to permanently removing the child from his father, and that defendants failed to make such efforts. Defendants contend that private plaintiffs may not maintain an action pursuant to Section 1983 based on violations of the AACWA.

For a federal statute to create private rights enforceable under Section 1983, the statutory language must unambiguously confer an enforceable right on an identifiable class of beneficiaries (Taylor v. Vt. Dep't of Educ., 313 F3d 768 [2002] [internal quotations and citations omitted]). Assuming this threshold inquiry is satisfied, the court must next "determine if Congress foreclosed a § 1983 remedy either expressly or impliedly through the creation of a comprehensive administrative enforcement scheme" (id. [citation omitted]).

In general, the AACWA is a federal funding statute establishing a program of payments to states for foster care and adoption assistance.

The Act . . . establishes a cooperative federal-state program in which the federal government reimburses the state for certain expenses the state incurs in administering foster care and adoption services if the state satisfies the requirements imposed by the Act, principal among which is a requirement that the state submit for approval by the Secretary of Health and Human Services a plan for foster care and adoption assistance which adheres to specific delineated requirements . . . . If a state follows its approved plan, it receives federal funds. If it does not follow its approved plan, then it may lose some or all of the federal funds it would otherwise receive.

(Olivia Y. v. Barbour, 351 F Supp 2d 543, 557-558 [SD Miss 2004]).

In Suter v. Artist M., 503 US 347 (1992), the Supreme Court held that one provision of the AAWCA, 42 USC § 671 (a) (15), did not create a private cause of action. In 1994, Congress amended the Act to preserve the holding in Suter and clarify "the mere fact that an obligation is couched in a requirement that the State file a plan is not itself sufficient grounds for finding the obligation unenforceable under § 1983" (Harris v. James, 127 F3d 993, 1003 [11th Cir 1997]; see also Gonzaga Univ. v. Doe, 536 US 273 [2002]).

The AAWCA was amended again in 1996 to confer a private right of action on "any individual who is aggrieved by a violation of Section 671 (a) (18) (see 42 USC § 674 [d] [3] [a])".

"That Congress recently chose to amend 42 U.S.C. § 674 to include a private right of action [*23]under § 1983 for a state or other entity's failure to comply with 42 U.S.C. § 671 (a) (18), but did not include the other various elements enumerated in 42 U.S.C. § 671 (a) and relied upon by Plaintiffs, is strong evidence that Congress did not intend these other various State plan elements in 42 U.S.C. § 671 (a) to confer rights enforceable pursuant to § 1983" (Olivia Y., 351 F Supp 2d at 565 [internal citations omitted]; see also LaShawn A. by Moore v. Barry, 144 F3d 847, 850 n 2 (DC Cir 1998); Charlie H. v. Whitman, 83 F Supp 2d 476, 489 n 2 [D NJ 2000]).^[FN10]

Based on the foregoing, the Court concludes that the provisions of the AACWA relied upon by plaintiff were not intended to confer individual rights enforceable in a private action under Section 1983. Accordingly, this claim must be dismissed.

QUALIFIED IMMUNITY

Having concluded that plaintiffs have succeeded in raising a triable issue of fact on their substantive due process claims, the next step is to determine whether the remaining individual defendants are entitled to qualified immunity as a matter of law on such claims (Saucier, 533 US at 201; Russo v. City of Bridgeport, 479 F3d 196, 211 [2d Cir 2007]).

Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: "(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law" (Poe v. Leonard, 282 F3d 123, 133 [2d Cir 2002] [internal quotations omitted]). Qualified immunity generally is a question of law to be resolved by the court, and since it is "an immunity from suit rather than a mere defense to liability," (Mitchell v. Forsyth, 472 US 511, 526 [1985]), it should be decided at the earlier possible stage of the litigation (Colao v. Mills, 39 AD3d 1048, 1050 [3d Dept 2007], citing Hunter v Bryant, 502 US 224, 228 [1991]).

A.Clearly Established Right

The inquiry of whether the right at issue is clearly established "must be undertaken in light of the specific context of the case, not as a broad general proposition" (Saucier, 533 US at 201). In this case, both parties have framed the substantive due process right in essentially the same manner: the right of a natural parent to raise his or her child absent proof of abuse, neglect, abandonment or unfitness (and the corresponding right of the child). Framed in this manner, the right was clearly established by the decisional law of the U.S. Supreme Court and the Second Circuit during the relevant time period (see supra; see also Matter of Linda D. v. Renee D., 40 AD3d 1201 [3d Dept 2006] ["It is axiomatic that a biological parent has a superior claim to custody of his or her child above all others absent surrender, abandonment, neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances."]).

The parties' characterization of the right, however, may not be sufficiently particularized to the unique circumstances of this case. It is undisputed that the initial placement of the child [*24]into foster care was lawful and appropriate due to the mother's neglect, and the father did not have legal or physical custody of the child at that time. Thus, given the procedural context of this case, the Family Court litigation did not involve a child protective agency having the burden of proving that Mr. Ryan was unfit to parent his child; rather, since the child lawfully was in DSS custody, the petitions filed by Mr. Ryan were ones in which he had the burden of persuading Family Court to transfer the child from foster care to his custody. Further, the custody decisions complained of by plaintiffs ultimately were the product of determinations and orders of Family Court.

It does not appear that U.S. Supreme Court or Second Circuit authorities address this type of situation. Thus, as clearly established as the general familial right framed by the parties may be, the question here is whether controlling decisions of the Supreme Court and the Second Circuit clearly establish the right in a manner to such an extent as would put reasonable social workers on notice that their conduct here violated such a right. As the Supreme Court explained in Saucier:

In this litigation, for instance, there is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson "that the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." 483 U.S. at 640. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See Wilson v. Layne, 526 U.S. 603, 615, 143 L. Ed. 2d 818, 119 S. Ct. 1692 (1999) ("As we explained in Anderson, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established").

* * * *

This is not to say that the formulation of a general rule is beside the point, nor is it to insist the courts must have agreed upon the precise formulation of the standard. Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the officer would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard.

(533 US at 201-203).

Given the substantial variation between the facts of this case and the precedents establishing the generalized right to rear one's child, it is questionable whether the parties have articulated the right at issue in a sufficiently particularized manner. Nonetheless, even accepting the right in the manner framed by the parties, the Court concludes that the individual defendants are entitled to qualified immunity on the ground that it would not have been clear to reasonable case workers that their actions violated such right (see Poe, 282 F3d at 133).

B.Immunity Analysis

1.Evaluation and Preventive Service Requirements

In concluding that the individual defendants are entitled to qualified immunity, the Court [*25]begins with defendants' role in requiring Mr. Ryan to obtain evaluations including drug assessments, drug screening and mental health evaluations and participate in a variety of preventive service programs including anti-drug education and parenting classes.

As discussed supra, defendants are entitled to absolute immunity for their role in carrying out the July 1995 order of Family Court requiring Mr. Ryan to attend the initial substance abuse assessment and psychological evaluation. Further, even assuming defendants' played a role in procuring this order, they did not violate plaintiffs' rights by recommending to Family Court that it ensure that the father did not have a drug problem or other psychological problems before allowing him access to Alex Ryan, Jr., a neglected child who had been born with cocaine in his system.

Defendants then relied upon the initial court-ordered evaluations as a basis for requiring Mr. Ryan to obtain the services recommended by the evaluators. Plaintiffs contend that these actions were improper, since the order of Family Court merely required Mr. Ryan to obtain evaluations and did not expressly mandate that he receive the preventive services recommended thereby. The Court disagrees. While the court's order did not expressly speak to this issue, it defies logic and common sense to suggest that Family Court did not intend for the recommendations of the court-ordered evaluators to inform the subsequent actions of both defendants and Family Court. In any event, a reasonable case worker could have understood Family Court's order as authorizing and/or directing that Mr. Ryan participate in the programs recommended by the court-ordered evaluations.

The drug assessment resulted in a recommendation that Mr. Ryan should attend a 12-week educational program regarding substance abuse. The outside evaluator also reported that Mr. Ryan was a known drug user. While plaintiff asserts that this information was false, nothing in the record discloses any basis to conclude that defendants knew or should have known the information provided to DSS was unreliable.

Similarly, the initial psychological evaluation resulted in an assessment that Mr. Ryan was unable to care for his child, and thus recommended a program of parental education and counseling for Mr. Ryan. Further, the report expressed concerns regarding the father's failure to protect his son from the mother's drug use, and questioned what Mr. Ryan would do if forced to choose between the protecting the interests of his child and maintaining an ongoing relationship with the child's mother.^[FN11] In light of this assessment recommending against providing the father with custody, or even unsupervised visitation pending the provision of parental education, it cannot be said that a reasonable case worker would have known that acting on this basis of this recommendation would violate plaintiffs' right of familial association.

From there, it was, as plaintiff's expert aptly described it, a "spiral". Mr. Ryan's pattern of less than full compliance with the program recommendations of the court-ordered evaluators became the basis for additional evaluations, program requirements and, ultimately, the continued [*26]denial of his custody petitions and the granting of the petition to terminate his parental rights. Thus, Mr. Ryan's failure to fully complete the 12-week educational program regarding substance abuse resulted in a decision by defendant Boyko to require a second substance-abuse evaluation in August 1996, where evaluators described him as being "untruthful, defensive and anti-social." This evaluation resulted in recommendations that Mr. Ryan attend an anger-management program and have his urine screened for drugs bi-weekly.

Similarly, the requirement that Mr. Ryan receive parental education led to DSS caseworkers receiving reports from providers that he had been unreliable with respect to visitation, engaging in erratic behavior and had made statements that were interpreted as expressing a lack of interest in obtaining custody of his child. These reports, in turn, led to additional drug screening requirements and other evaluations and preventive service requirements. Again, while plaintiffs take issue with the manner in which the outside providers and their employees conducted their evaluations and the information that they relied upon and communicated to DSS, a reasonable case worker in the position of Carol Boyko or her supervisor, Liz Romeling, would not have known of the alleged unreliability of these reports and recommendations. Nor would it have been clear to a reasonable caseworker in the position of defendants that following the recommendations of the outside experts would deprive plaintiffs of a constitutionally protected liberty interest.

Indeed, during relevant time periods, defendants were presented with ostensibly neutral third-party evaluations of Mr. Ryan, which reported the following: (a) Alex Ryan, Sr. was not truthful with providers regarding his drug use; (b) he failed a drug test during the period in which he had unsupervised visits with his child; (c) he left a drug treatment facility when asked to provide a second urine sample; (d) he continued to have a relationship with the mother of the child at a time when the order of protection issued by Family Court prohibited her from having unsupervised contact with the child; (e) social workers had concerns about his ability and desire to care for his child; (f) Mr. Ryan could not make a permanent home for his child; (f) he discontinued court-ordered preventive services; (g) he displayed expectations for his son that were not age appropriate; and (h) he failed to regularly attend visitation with the child.

It is apparent that some of the issues raised by the evaluators relate more to Mr. Ryan's mounting frustration with the hurdles he was being forced to jump through to obtain custody of his son, particularly since defendants had no proof of any conduct on Mr. Ryan's part that constituted abuse, neglect or unfitness. Thus, Mr. Ryan's evident (and in many respects, justified) frustration with the Kafkaesque situation in which he found himself resulted in hostile, non-compliant behaviors, which, in turn, led to additional preventive services recommendations and requirements (such as the recommendation that he attend an anger management program). Further, Mr. Ryan's refusal to accept responsibility for his son being in foster care and instead blaming defendants a position that finds considerable support in the record became additional evidence of his unwillingness to do what was necessary to gain custody of his child.

It is also clear that in certain instances, the evaluators relied on and reported to DSS factually incorrect information. Again, the record does not support the conclusion that DSS officials were aware the evaluations were based on incorrect factual information or were otherwise unreliable. Accordingly, a reasonable child protective worker presented with these reports and recommendations could have believed that it was permissible indeed required for them to ensure that Mr. Ryan obtained the recommended services and follow-up evaluations. [*27]

In addition to his less than full compliance with the program requirements imposed by DSS officials, other actions on Mr. Ryan's part also contributed to seemingly endless series of evaluations and programs of which he complains. Thus, in April 1997 after having participated in a variety of drug education programs over the course of almost two years while vigorously disputing that he ever used drugs Mr. Ryan tested positive on one occasion for the presence of marijuana. This positive drug test led to another substance abuse evaluation and recommendations for additional drug counseling, which he refused. His lack of compliance in this regard then became a further basis for DSS to advocate against the father's petitions for custody, a position that was accepted by Family Court. The positive drug test also resulted in the requirement that visitation become supervised, which led to scheduling problems for Mr. Ryan, and reports of uncooperative and hostile behavior from the monitors and foster mother.

As the Appellate Division made clear, this one positive drug test did not provide a basis in and of itself for denying Mr. Ryan his parental rights. It did, however, at the very least give defendants a plausible basis for requesting additional evaluations, monitoring and anti-drug education. It also gave defendants reason to doubt Mr. Ryan's prior protestations that he did not use drugs. Further, it raised legitimate questions in the minds of DSS officials, at a critical stage of the permanency planning process, as to whether Mr. Ryan truly was serious about obtaining custody of his child.

The cycle of evaluations, program requirements and less than full compliance on Mr. Ryan's part continued throughout the relevant time periods and became the basis for defendants' recommendations to Family Court that it deny the father's custody petitions, maintain continued custody in DSS and, ultimately, terminate the father's parental rights. These failures also became the basis for Family Court's rejection of the father's custody petitions, and resulted in defendants' decision to restrict the terms and conditions of visitation between Alex Ryan, Sr. and his child.

Based on the foregoing, the Court concludes that the individual defendants are entitled to qualified immunity for their role in requiring Mr. Ryan to participate in various evaluations and obtain the preventive services recommended pursuant to such evaluations.

2.Evidentiary Submissions and Recommendations

The Court next considers the defendants' conduct in connection with evidentiary submissions and recommendations to Family Court. During the relevant time period, defendant Boyko repeatedly advocated in favor of maintaining custody of the child in DSS and opposed the father's petitions for custody. Further, Timothy Kircher, under the supervision of Liz Romeling, signed a petition containing evidentiary submissions in support of DSS's petition to terminate the father's parental rights. These submissions were based, in large part, on the reports and recommendations of the outside evaluators and the failures of the father to obtain the recommended services. These submissions also relied upon information collected by DSS officials, such as the father's adherence to visitation and meeting schedules and his living arrangements.

The Court concludes that the individual defendants are entitled to qualified immunity with respect to their submissions and recommendations to Family Court. It would not have been clear to a reasonable caseworker in the position of defendants that he or she would violate plaintiffs' familial rights by insisting that the father fully satisfy the prescribed evaluation and service requirements prior to recommending that Mr. Ryan be given custody of his child. [*28]Further, defendants' reliance on the judicial process including a Law Guardian appointed to represent the interests of child, the procedural protections nominally available to Family Court litigants and the generous appellate remedies provided by the CPLR to strike an appropriate balance between the State's interest in protecting a minor child from harm and respecting the sometimes competing right of a father to rear his child, cannot be said to be unreasonable.

3.Visitation

Similar considerations compel the conclusion that the individual defendants are entitled to qualified immunity with respect to the issue of visitation. Defendants' actions in limiting father-son visitation were again based primarily on the reports and recommendations of the outside evaluators and the failures of the father to obtain the recommended preventive services. It would not have been apparent to a reasonable social service worker that they were violating plaintiffs' substantive due process rights by restricting visitation under these circumstances.

4.Other Conduct

While plaintiff complains that DSS officials and outside providers exhibited a bias against him, there is nothing in the record to support the contention that defendants had any personal animus towards Mr. Ryan or that they were carrying out some predetermined agenda to deprive him of his parental rights. Further, as discussed supra, while defendants may occasionally have relied on incorrect or suspect information in formulating these recommendations, there is no basis to conclude that defendants knowingly submitted false information to Family Court, turned a blind eye toward suspect information or otherwise acted in an unreasonable manner in investigating Mr. Ryan.

5.Conclusion

While the Court concludes that it would not have been clear to reasonable social service workers in the position of defendants that their actions violated Mr. Ryan's substantive due process right to rear his child (and the corresponding right of the child to be raised by his father), it is clear that at some point in this torturous process, defendants lost sight of the larger picture: respecting the primacy of the parent-child relationship absent proof of real danger to the child.

The process began reasonably and appropriately, with efforts by responsible social services officials to ensure that the Mr. Ryan would not further endanger a child seriously neglected and abused by his mother. At some point, however, defendants (and Family Court) should have realized that the there was no basis for the continued deprivation of Mr. Ryan's parental rights, and that the continual series of drug assessments, drug screening, drug rehabilitation, psychological screening, parenting classes, supervision in his interactions with his child, and the prolonged governmental interference with his right to parent his child must come to end and the child must be placed in the custody of his father absent proof that Mr. Ryan was a neglectful or unfit parent, a showing that defendants did not even attempt to make in Family Court.

While in retrospect it is easy to see the errors made by the defendant case workers over their years of involvement with this matter, the point in time where defendants went from legitimately protecting the interests of a neglected child in foster care an interest that has been described by the Second Circuit as "compelling" to impinging upon the Ryan's right to live together as a family is far from a bright line (Kia P, 235 F3d at 758-59). Indeed, even with the benefit of hindsight, plaintiff's expert concedes that Alex Ryan, Jr.'s first year in foster care was [*29]"questionable" (Courtney Aff. ¶11).^[FN12] Clearly, this is an issue upon which reasonable social workers can disagree, and as such, strongly supports defendants' claim of qualified immunity.

The Second Circuit has explained the difficult choice faced by child welfare workers, and the importance of qualified immunity in cases such as this:

Though a decision to remove a child from parental custody implicates the constitutional rights of the parents, it obliges protective service caseworkers to choose between difficult alternatives in the context of suspected child abuse. If they err in interrupting parental custody, they may be accused of infringing the parents' constitutional rights. If they err in not removing the child, they risk injury to the child and may be accused of infringing the child's rights. It is precisely the function of qualified immunity to protect state officials in choosing between such alternatives, provided that there is an objectively reasonable basis for their decision.

(van Emrik v Chemung County Dep't of Social Services, 911 F2d 863, 866 [2d Cir 1990]).

While the individual defendants clearly made the wrong choices on many occasions in their dealings with plaintiffs, the record before the Court establishes that they reasonably could have believed their actions to be lawful under the circumstances they confronted. Accordingly, the Court is constrained to conclude that the substantive due process claims against the individual defendants must be dismissed on the basis of qualified immunity.

STATE LAW IMMUNITIES

A.Judicial Immunity

The doctrine of judicial immunity is also recognized under New York State common law:

Courts have recognized that it is imperative to the nature of the judicial function that Judges be free to make decisions without fear of retribution through accusations of malicious wrongdoing. Judicial immunity discourages inappropriate collateral attacks on court rulings and fosters judicial independence by protecting courts and judges from vexatious litigation. Indeed, most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability. Allowing members of the judiciary to exercise independent judgment, without the threat of legal reprisal, is critical to our judicial system.

(Mosher-Simons v County of Allegany, 99 NY2d 214, 219 [2002] [internal quotations and citations omitted]).

As under federal law, claims of absolute immunity are adjudicated under a functional analysis: [*30]

A logical extension of this premise is that other neutrally positioned government officials, regardless of title, who are delegated judicial or quasi-judicial functions should also not be shackled with the fear of civil retribution for their acts. The common law provides absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who are integral parts of the judicial process. Notably, this extension of judicial immunity to those whose actions are an integral part of the judicial process is limited. It is circumscribed to claims arising from the performance of the specific judicially delegated function.

(id. at 220[internal quotations and citations omitted]).

In Mosher-Simons, the Court of Appeals considered whether a claim of negligent placement would lie against child protective workers who prepared home studies of the child's relatives pursuant to an order of the Family Court, and submitted those studies to the court without recommending a placement. Following completion of the home studies and on the consent of all parties, Family Court placed the child in the custody of a relative who subsequently murdered the child.

In holding that the child protective workers were absolutely immune from liability, the Court of Appeals explained:

In this case the Family Court, whose order placed [the child] in [the relative's] custody, is immune from a claim of negligent placement; the placement was undeniably the execution of a judicial function. In fact, plaintiff makes no attempt to raise such a claim. It follows then that the antecedent fact-gathering process necessary for the court to reach this placement decision also must be cloaked with judicial immunity. The court-ordered DSS home study was an integral part of the judicial decision-making process. The caseworker gathered and reported pertinent information to assist the court in determining an appropriate place for [the child] to live.

(id.; see also Sean M. v. City of New York, 20 AD3d 146, 157 [1st Dept. 2005] ["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."]).

Further, the Court of Appeals in Mosher-Simons recognized that the participation of child protective workers was essential to the judicial process, stating:

The information necessary for the placement decision was available only by way of evaluations that would be impracticable for the court to perform itself. Indeed, the Social Services Law recognizes the important role played by caseworkers in gathering information on behalf of the Family Court. Thus, the caseworker functioned as an extension of the court and was acting within the scope of the court's order when he completed the study. The County is therefore entitled to judicial immunity.

(Mosher-Simons, 99 NY2d at 220 [internal citation omitted]).

The Court's decision was also informed by strong policy considerations favoring absolute immunity under the circumstances. In particular, the Court was concerned that a contrary result would permit social service workers to become a "lighting rod" for harassing litigation aimed at judicial orders, thereby imperiling the effectiveness of child protection measures (id., quoting [*31]Coverdell v Department of Social & Health Servs., State of Wash., 834 F2d 758, 765 [9th Cir 1987]). Further, the Court attached some importance to the fact that the court-ordered study "did not recommend a specific placement but did provide information about both potential custodians to aid in the court's placement decision" (99 NY2d at 217; see also id. at 219 ["The home study contains no specific recommendation, however, and did not effectuate the placement."])

B.Discretionary Function Immunity

New York State common law also recognizes the doctrine of government immunity, which attaches when the duties of the defendant's position involve "the exercise of . . . discretion and judgment" (Mon v City of New York, 78 NY2d 309, 313 [1991] [immunity for hiring of police officer]). "Governmental immunity relieves a public official from liability for the injurious consequences of a discretionary act, even if they result from negligence or malice" (Sean M., 20 AD3d at 158, citing Tango v Tulevech, 61 NY2d 34 [1983] [bad faith or malice irrelevant]).

The Court of Appeals explained the basis for this immunity as follows:

Governmental immunity under the decisional law of this State does not attach to every act, but when official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant generally is not answerable in damages for the injurious consequences of that action. Whether absolute or qualified, this immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.

(Haddock v. City of New York, 75 NY2d 478, 484 [1990]).

C.Social Services Law 419

Defendants also rely on the immunities set forth in Section 419 of New York Social Services Law. "The statutory immunity conferred by Social Services Law § 419 is not intended to apply to failures to provide the services required by the Social Services Law" (Sean M., 20 AD3d at 158). "Rather, the immunity conferred by § 419 is confined to the making of reports, the removal of a child from the home and the provision of services pursuant to Social Services Law § 424, which section merely describes the duties of the child protective service concerning reports of abuse or maltreatment (id. [internal quotation omitted]; see also Shabazz v. Sheltering Arms Children's Serv., 301 AD2d 371 [1st Dept 2003] [statute "limited to persons and agencies participating in good faith in the investigation of child abuse allegations"]). Accordingly, the Court concludes that this type of immunity is not applicable here.

D.Analysis of State-Law Immunity Claims

The Court concludes that the plaintiffs' various state law claims,^[FN13] which rely on the same [*32]allegations of wrongful conduct discussed in detail supra, are foreclosed by a combination of judicial immunity and discretionary function immunity. The doctrine of judicial immunity under state law is at least as expansive as the immunity available under Section 1983.^[FN14] Further, discretionary function immunity for state officials engaged in action that "involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial" is more expansive than federal qualified immunity, insofar as the official's motivations are irrelevant (see Haddock v. New York, 75 NY2d at 484). The record before the Court demonstrates that defendants' challenged conduct, other than those actions taken pursuant to court order (which are protected by judicial immunity), represented discretionary, non-ministerial actions that involved the exercise of expert judgment in the field of social services and child welfare. Accordingly, based on the analysis set forth supra, the Court concludes that defendants are immune from the state-law claims asserted against them.

CROSS-MOTION TO AMEND THE COMPLAINT

In view of the foregoing, the Court denies as moot plaintiffs' cross-motion for leave to amend to their complaint to add an allegation that a notice of claim was served, a hearing was held pursuant to General Municipal Law § 50-h and more than thirty days had elapsed without defendants making a payment on the claim.

CONCLUSION

Accordingly,^[FN15] it is

ORDERED that defendants' motion for summary judgment is granted in all respects; and it is further

ORDERED that plaintiffs' complaint is dismissed; and it is further

ORDERED that plaintiffs' motion for leave to amend the complaint is denied as moot.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to counsel for defendants. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

September 6, 2007

Richard M. Platkin

A.J.S.C.