Johnson v. Poole et al

Filing 60

MEMORANDUM-DECISION AND ORDERED, that the Moving Defendants motion to dismiss (Dkt. No. 49) is GRANTED for failure to state a claim; and it is furtherORDERED, that the claims asserted in the Amended Complaint (Dkt. No. 36) against OCFS, Cullen, and Poole are DISMISSED without leave to amend; and it is furtherORDERED, that OCFS, Cullen, and Poole are DISMISSED as defendants in this action. Signed by Senior Judge Lawrence E. Kahn on December 18, 2017. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LISA JOHNSON, individually and
as next friend of L.R.,
Plaintiff,
-against-

1:16-CV-1331 (LEK/DEP)

NEW YORK STATE OFFICE OF CHILD
AND FAMILY SERVICES, et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
On November 7, 2016, plaintiff Lisa Johnson commenced this action individually and as

next friend of her minor grandson, L.R. Dkt. No. 1 (“Complaint”). Plaintiff’s amended
complaint, Dkt. No. 36 (“Amended Complaint”), names as defendants the New York State
Office of Children and Family Services (“OCFS”), the Albany County Department for Children,
Youth, and Families (“DCYF”), Cheryl Cullen, Acting Commissioner of OCFS Sheila Poole,
and several DCYF officials and employees: Gail Geohagen-Pratt, Ashanta Harris, Catherine
Warren, and Marian Logan. Plaintiff alleges that Defendants terminated Plaintiff’s foster care
benefits and revoked her foster care certification in violation of the United States Constitution,
the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq. (“AACWA”),
and New York law. Am. Compl. Defendants OCFS, Poole, and Cullen (together, the “Moving
Defendants”), moved to dismiss all claims asserted against them in the Amended Complaint.
Dkt. Nos. 49 (“Motion”), 49-7 (“Memorandum”). For the reasons that follow, the Motion is
granted.

II.

BACKGROUND
A. Factual History
When L.R. was born, both he and his birth mother, Plaintiff’s daughter, lived in

Plaintiff’s home. Am. Compl. ¶ 74. In March 2013, L.R.’s mother “was asked to leave” the
home. Id. ¶ 75. Plaintiff then sought to become certified as L.R.’s foster parent. Id. ¶¶ 80–82. At
that time, DCYF contracted with Berkshire Farm Center and Services for Youth “to approve and
certify foster homes.” Id. ¶ 83. After an inspection in September 2013, “Berkshire Farm made an
emergency certification of [Plaintiff’s] home.” Id. ¶ 87. At the end of September 2013, Plaintiff
began receiving foster care maintenance payments on behalf of L.R. Id. ¶ 89. “On March 4, 2014,
Berkshire Farm approved . . . [Plaintiff’s] home as a suitable foster home for L.R.” Id. ¶ 92.
Plaintiff maintains that this was when “the home had been fully certified” as a foster care home.
Id. ¶ 109.
In April 2014, DCYF sent a notice to Plaintiff, informing her of the agency’s intent to
remove L.R. from her home on April 24. Id. ¶ 100. Soon after receiving the notice, Plaintiff
spoke to Ashanta Harris, a DCYF case worker, who told her that “if she wanted L.R. to stay in
her home, she would have to file a petition for custody under Article 6 of the Family Court Act,”
and that “it would be ‘safest’” if Plaintiff filed a petition for custody.1 Id. ¶ 102. On April 18,
Plaintiff filed a custody petition in the Albany County Family Court. Id. ¶ 104.
On April 25, 2014, the Albany County Family Court issued an order vacating DCYF’s
custody of L.R. and granting Plaintiff custody of her grandson through direct placement “until

1

The Family Court placed L.R. in DCYF’s custody on September 18, 2013. Am. Compl.

¶ 79.
2

further order of the Court.”2 Id. ¶¶ 111–12. Some time between April and June 2014, DCYF
terminated Plaintiff’s foster care benefits. Id. ¶ 116. After the termination of her foster care
benefits, Plaintiff successfully applied for “a ‘child only’ cash grant for the support of L.R.,”
which provided her with less money than the foster care benefits had. Id. ¶ 117. On
September 3, 2014, the Family Court granted Plaintiff “legal and physical custody of L.R. under
Article 6 of the Family Court Act.” Id. ¶ 122.
Plaintiff also states that her foster care certification was revoked, id. ¶ 124, but does not
state when it was revoked or who revoked it. She alleges that, “[o]n or about July 10, 2014,” after
she “requested a conference” with Marian Logan, DCYF’s Director of Children Services, Logan
sent Plaintiff a letter explaining that her foster care certification “was not valid” because Plaintiff
did not complete various “required certification activities” in a timely manner. Id. ¶¶ 118–19.
In December 2014, Plaintiff, through counsel, requested that OCFS and DCYF provide a
hearing regarding the termination of her foster care benefits and revocation of her foster care
certification. Id. ¶¶ 123–24. OCFS held a hearing on March 10, 2015, and the presiding
administrative law judge concluded that the agency did not have jurisdiction to hear Plaintiff’s
grievances. Id. ¶¶ 125, 127.
Plaintiff alleges that, without foster care benefits, she and L.R. suffer “financial hardship”
and “are regularly hungry due to lack of income to buy food.” Id. ¶ 131. Plaintiff further alleges
that, because Defendants never provided the basis for terminating her foster care maintenance

2

A later paragraph in the Amended Complaint states that this order was issued on
June 4, 2015. Am. Compl. ¶ 115. However, because numerous allegations suggest that Johnson
had custody of L.R. well before June 2015, e.g., id. ¶¶ 112, 122, 126, 128, the Court assumes that
the later date is a typographical error.
3

payments or revocation of her foster care certification “through a written notice,” she and L.R.
suffer from “emotional distress, mental anguish, and anxiety.” Id.
B. Procedural History
Plaintiff filed her original complaint on November 7, 2016. Compl. Plaintiff’s Amended
Complaint, filed on May 15, 2017, names OCFS, DCYF, Poole, Cullen, Pratt, Logan, Harris, and
Warren as defendants. Am. Compl. Plaintiff brings claims under 42 U.S.C. § 1983, alleging that
Defendants violated AACWA and the Due Process Clause of the Fourteenth Amendment when
they failed to provide notice and an opportunity for a hearing regarding the termination of
Plaintiff’s foster care maintenance payments and the revocation of her foster care certification.
Id. ¶¶ 33–34, 132–33. Plaintiff also alleges violations of New York State law. Id. ¶ 132.
Plaintiff seeks (1) a declaration that Defendants “violated and continue to violate
plaintiffs [sic] federal and state rights”; (2) an injunction requiring that Defendants provide
Plaintiff and L.R. with notice and an opportunity for a hearing; (3) “damages for lost foster care
benefits”; and (4) “damages for . . . pain and suffering.” Id. at 27–28. The Moving Defendants
moved to dismiss all claims asserted against them in the Amended Complaint pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Mot.; Mem. Plaintiff
opposed the Motion, Dkt. No. 54 (“Response”), and the Moving Defendants filed a reply, Dkt.
No. 55 (“Reply”). For the reasons that follow, the Motion is granted.

III.

LEGAL STANDARD

4

A. Rule (12)(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” New York by
Schneiderman v. Utica City Sch. Dist., 177 F. Supp. 3d 739, 745 (N.D.N.Y. 2016) (quoting
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). “Subject matter jurisdiction is a
threshold issue and, thus, when a party moves to dismiss under both Rules 12(b)(1) and 12(b)(6),
the motion court must address the 12(b)(1) motion first.” Id. at 746 (quoting Makarova, 201 F.3d
at 113).
B. Rule 12(b)(6)
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as
true the factual allegations contained in a complaint and draw all inferences in favor of the
nonmoving party. Allaire Corp. v. Okumus, 433 F.3d 248, 249–50 (2d Cir. 2006). Plausibility,
however, requires “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence of [the alleged misconduct].” Twombly, 550 U.S. at 556.
The plausibility standard “asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he pleading standard
Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S.
at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct
5

based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the
action is subject to dismissal. Id. at 678–79.
IV.

DISCUSSION
A. 12(b)(1) Motion
1. Rooker-Feldman
The Moving Defendants argue that the Rooker-Feldman doctrine deprives the Court of

subject matter jurisdiction because Plaintiff effectively asks the Court to reexamine the Albany
County Family Court’s 2014 orders that granted her custody of L.R. Mem. at 11–12. “RookerFeldman bars the federal courts from exercising jurisdiction over claims ‘brought by state-court
losers complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those judgments.’”
Sykes v. Mel S. Harris & Assocs., LLC, 780 F.3d 70, 94 (2d Cir. 2015) (quoting Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
The Supreme Court has emphasized that “Rooker-Feldman . . . is a narrow doctrine,” and
does not create “a wide-reaching bar on the jurisdiction of lower federal courts.” Lance v.
Dennis, 546 U.S. 459, 464 (2006). Rooker-Feldman applies if four requirements are satisfied:
“First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must
complain of injuries caused by a state-court judgment. Third, the plaintiff must invite district
court review and rejection of that judgment. Fourth, the state-court judgment must have been
rendered before the district court proceedings commenced.” Hoblock v. Albany Cty. Bd. of
Elections, 422 F.3d 77, 85 (2d Cir. 2005) (alterations and internal quotation marks omitted).
Rooker-Feldman does not deprive the Court of jurisdiction over Plaintiff’s action because
6

the doctrine’s second and third requirements are not satisfied. Regarding the second requirement,
“a federal suit complains of injury from a state-court judgment, even if it appears to complain
only of a third party’s actions, when the third party’s actions are produced by a state-court
judgment and not simply ratified, acquiesced in, or left unpunished by it.” Hoblock, 422 F.3d
at 88. A state-court judgment “produces” a third party’s actions when the third parties “act[]
under compulsion of a state-court order.” Id.
Here, Plaintiff does not challenge any state court judgment and Defendants did not act
under the compulsion of a state court judgment. The April 25, 2014 Family Court order vacated
DCYF’s custody of L.R. and, through direct placement, granted Plaintiff custody of L.R. Am.
Compl. ¶¶ 111–12. The September 23, 2014 Family Court order awarded her permanent “legal
and physical custody of L.R.” Id. ¶ 122. Plaintiff does not challenge either order. Rather, she
argues that, despite the orders, Defendants unlawfully terminated her foster care benefits and
revoked her foster certification without notice and an opportunity for hearing. E.g., Resp.
at 23–24.
Moreover, the Moving Defendants do not claim that either of the Family Court orders
instructed DCYF to terminate Plaintiff’s foster care benefits. It appears that DCYF employees
terminated the benefits on April 25, 2014, after they determined that the Family Court order
rendered Plaintiff ineligible for future foster care benefits. Id. ¶ 112 (quoting DCYF caseworker
who stated, “As a result of the direct . . . placement [of L.R.] with [Plaintiff], [DCYF] will no
longer be paying . . . for any foster care services to the family”). Even if canceling Plaintiff’s
benefits in light of the Family Court order was appropriate, DCYF was not acting under
compulsion of the order. Plaintiff and L.R.’s alleged injuries relating to the termination of
7

Plaintiff’s foster care benefits, therefore, were not caused by the Family Court orders. See
Morrison v. City of New York, 591 F.3d 109, 110, 112 (2d Cir. 2010) (holding that RookerFeldman did not bar plaintiff’s request for “relief based on discretionary decisions of the hospital
that were not mandated by the Family Court order,” even though defendants claimed that the
hospital acted in response to the order).
Plaintiff’s alleged injuries stemming from the revocation of her foster care certification
were, similarly, not caused by a state court judgment. Plaintiff does not explain who revoked her
certification. She does, however, allege that DCYF cited her failure to complete “certification
activities” in a timely manner as the reason her certification was revoked. Am. Compl. ¶ 119.
Regardless of the vagueness of this allegation, it appears to stem from an administrative decision
that was unrelated to a state court judgment.
Rooker-Feldman’s third requirement is also inapplicable. This requirement applies only
when granting “relief necessarily would require the district court to ‘determine that a state-court
judgment was erroneously entered or was void.’” Ward v. Bankers Trust. Co. of California, N.A.,
No. 09-CV-1943, 2011 WL 1322205, at *7 (E.D.N.Y. Mar. 29, 2011) (quoting Kropelnicki v.
Siegel, 290 F.3d 118, 129 (2d Cir. 2002)). Plaintiff’s action requires no examination of the
Family Court orders. Whether Defendants violated AACWA or denied Plaintiff and L.R. due
process requires an analysis of AACWA and whether Plaintiff and L.R. “have a legitimate claim
of entitlement” to allegedly deprived property interests, Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972), not the merits of the Family Court orders. Plaintiff’s request for
“damages for lost foster care benefits,” Am. Compl. at 28, is no exception. She does not allege
that she and L.R. deserve compensation because of any error in the Family Court orders. Instead,
8

she asks for such damages “pending receipt of adequate notice and a meaningful opportunity to
be heard.” Id. ¶ 10. Even though this is an inappropriate remedy for a denial of procedural due
process, e.g., Miner v. City of Glens Falls, No. 89-CV-918, 1992 WL 349668, at *1 (N.D.N.Y.
Nov. 12, 1992) (noting that a plaintiff alleging a procedural due process violation must show
“that the damages stemmed from the procedural violation rather than from the underlying
deprivation”), it does not require the Court to scrutinize a state court judgment. For these reasons,
Rooker-Feldman does not deprive the Court of subject matter jurisdiction over Plaintiff’s case.
2. The Domestic Relations Exception
The Moving Defendants also argue that the domestic relations exception to federal
subject matter jurisdiction prohibits the Court from considering Plaintiff’s action because
Plaintiff attempts to “rewrit[e] a child custody dispute as a federal civil rights claim.” Mem.
at 10. The domestic relations exception “encompasses only cases involving the issuance of a
divorce, alimony, or child custody decree.” Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992).
Notwithstanding this limitation, courts in this circuit have applied the exception to “claims [that]
begin and end in a domestic dispute.” McKnight v. Middleton, 699 F. Supp. 2d 507, 517
(E.D.N.Y. 2010) (internal quotation marks omitted); see also Joseph v. Stewart,
No. 13-CV-1678, 2013 WL 3863915, at *2 (E.D.N.Y. July 24, 2013) (“Plaintiff challenges the
enforcement and effect of his child support obligations, and although he invokes his
constitutional rights, the essence of his allegations concern state law domestic relations
matters.”).
The domestic relations exception is inapplicable to this action. Plaintiff’s request for
notice and an opportunity for a hearing does not concern “issuance of a divorce, alimony, or child
9

custody decree.” Ankenbrandt, 504 U.S. at 704. In fact, resolving her claims requires no analysis
of the Family Court orders or substantive state domestic relations law, which further indicates
that Plaintiff’s claims do not begin and end in a domestic dispute. See Renaud v. Mattingly,
No. 09-CV-9303, 2010 WL 3291576, at *4 n.7 (S.D.N.Y. Aug. 10, 2010) (holding the domestic
relations exception inapplicable where “[t]he issue before [the] court [was] whether [p]laintiff
was afforded sufficient due process protection . . . and does not involve the issuance of a custody
decree”); McKnight, 699 F. Supp. 2d at 518–19 (recognizing that raising a procedural due
process challenge against “the state’s procedure used to separate a parent from a child” does not
implicate the domestic relations exception because adjudicating the challenge “does not entail
any investigation by the federal court into” domestic relations issues (quoting Thomas v. New
York City, 814 F. Supp. 1139, 1146–47 (E.D.N.Y. 1993))).
3. Mootness
The Moving Defendants argue that Plaintiff’s claims are moot because she “does not have
a legally cognizable interest that can be redressed in this case” by awarding relief against them.
Mem. at 7–8. A claim is moot if the party does not have, “at all stages of the litigation, . . . an
actual injury which is likely to be redressed by a favorable judicial decision.” United States v.
Williams, 475 F.3d 468, 478–79 (2d Cir. 2007) (internal quotation marks omitted), cert. denied,
552 U.S. 1105 (2008). “If a controversy is moot, then the Court lacks subject matter jurisdiction
over the action.” Ward v. Bank of New York, 455 F. Supp. 2d 262, 266 (S.D.N.Y. 2006) (citing
Church of Scientology v. United States, 506 U.S. 9, 12 (1992).
The Moving Defendants argue that Plaintiff and L.R. do not have redressable injuries
because Plaintiff “seeks reinstatement of her foster parent status,” and because “OCFS does not
10

have the power to nullify the Family Court’s orders concerning custody of L.R., nor to award
foster care benefits for a non-foster child . . . .” Mem. at 7–8. This, however, misstates Plaintiff’s
requests for relief. She complains only of injuries related to the deprivation of her foster care
benefits and certification without procedural protections. These injuries are plainly redressable,
and the Court rejects the Moving Defendants’ mootness argument.
For the foregoing reasons, the Court will not dismiss Plaintiff’s claims for lack of subject
matter jurisdiction.
B. 12(b)(6) Motion
The Moving Defendants argue that the Amended Complaint fails to state a claim against
them because the Eleventh Amendment immunizes them from Plaintiff’s claims and because
Plaintiff fails to allege a § 1983 violation. Mem. at 13–24. The Court addresses these arguments
below.
1. Eleventh Amendment
Under the Eleventh Amendment, “neither a State nor agencies acting under its control
may be subject to suit in federal court.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144 (1993) (internal quotation marks omitted). “This jurisdictional bar
applies regardless of the nature of the relief sought.” Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100 (1984). The Eleventh Amendment also bars suits for monetary damages
brought by citizens against a state official in her official capacity. Kentucky v. Graham, 473 U.S.
159, 169 (1985).
The Eleventh Amendment is inapplicable if the state waives its immunity to suit, or if
Congress enacts a statute that “abrogate[s] a state’s sovereign immunity.” CSX Transp., Inc. v.
11

New York State Office of Real Prop. Servs., 306 F.3d 87, 95 (2d Cir. 2002). Furthermore, the
Amendment does not apply to claims brought against a state official in their individual capacity,
Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993), or to claims against state
officials seeking prospective injunctive relief, Edelman v. Jordan, 415 U.S. 651, 677 (1974).
Plaintiff’s Amended Complaint seeks monetary damages and injunctive and declaratory
relief from each of the Moving Defendants. Am. Compl. at 27–28. Plaintiff specifies that she is
suing Poole in her individual and official capacities. Id. at 1. The Eleventh Amendment does not
bar Plaintiff’s request for damages from Poole in her individual capacity. It also does not bar
Plaintiff’s request for an injunction demanding notice and an opportunity for a hearing, id.
at 27–28, because this is a request for prospective relief. Also, because neither the Amended
Complaint nor Defendants’ briefing explains who Cullen is or whether this person is a state
official, the Court will not dismiss the claims against Cullen on Eleventh Amendment grounds.3
The Eleventh Amendment bars the remainder of the claims asserted against the Moving
Defendants. Plaintiff’s suit against OCFS, a New York State agency, is plainly barred, as is her
suit against Poole to the extent that Plaintiff seeks damages from Poole in her official capacity.
Moreover, Plaintiff’s request for a declaration that Poole “violated” her and L.R.’s rights in the

3

Plaintiff’s Response does not clarify whether Cullen is a state official, but, in a
footnote, calls Cullen a “supervisor” and attaches a hyperlink to a LinkedIn profile. Resp. at 14
n.2. When the response to a 12(b)(6) motion includes allegations not included in the pleadings, a
“district court[]. . . may exclude the additional material and decide the motion on the complaint
alone or it may convert the motion to one for summary judgment.” Fonte v. Bd. of Managers of
Cont’l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988). “Factual allegations contained in legal
briefs . . . are . . . matters outside the pleading[s] for purposes of Rule 12(b).” Green v. City of
Mount Vernon, 96 F. Supp. 3d 263, 285 (S.D.N.Y. 2015). The Court will not accept a link to a
social media profile as a substitute for identifying Cullen in the Amended Complaint, and
excludes this footnote from its consideration of the Motion.
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past, Am. Compl. at 27, is a request for retrospective declaratory relief, which is barred by the
Eleventh Amendment, Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at 146. The Court
dismisses each of these claims.
2. Section 1983
“In order to state a claim pursuant to . . . § 1983, a plaintiff must allege that (1) ‘some
person has deprived him of a federal right,’ and (2) ‘the person who has deprived him of that
right acted under color of state . . . law.’” Riviere v. Collins, No. 10-CV-548, 2010 WL 3323801,
at *1 (N.D.N.Y. May 28, 2010) (second alteration in original) (quoting Velez v. Levy, 401 F.3d
75, 84 (2d Cir. 2005)). “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official’s own individual
actions, has violated” a federal right. Iqbal, 556 U.S. at 676. Plaintiff alleges, pursuant to § 1983,
violations of AACWA and of the Due Process Clause of the Fourteenth Amendment. Am.
Compl. ¶¶ 11, 33–34, 132. The Court reviews these claims below.
a. Claims against Cullen
Plaintiff seeks relief from Cullen under § 1983, id. ¶¶ 1, 132–33. The Amended
Complaint does not state whether Cullen is a government official, and Plaintiff therefore fails to
allege that Cullen acted under color of state law. Consequently, the § 1983 claims against Cullen
are dismissed.
b. Due Process Claims
Plaintiff argues that Defendants terminated her foster care benefits and revoked her foster
care certification without due process. Am. Compl. ¶ 1. The Due Process Clause of the
Fourteenth Amendment prohibits the states from “depriv[ing] any person of life, liberty, or
13

property, without due process of law.” U.S. Const. amend. XIV, § 1. “[T]o establish a procedural
due process claim under § 1983, a plaintiff must demonstrate that he possessed a protected
property or liberty interest and was deprived of it without due process.” Palacio v. Pagan, 345 F.
App’x 668, 669 (2d Cir. 2009). As discussed below, the Court finds that Plaintiff fails to allege a
due Process violation.
i. Property Interest
First, Plaintiff fails to allege that the termination of her foster care benefits constituted a
due process violation because she and L.R. had no constitutionally protected property interest in
foster care benefits. “To have a property interest in a benefit, a person clearly must have more
than an abstract need or desire and more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.” Harrington v. Cty. of Suffolk, 607 F.3d 31, 34 (2d
Cir. 2010) (quoting Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)). “Such
entitlements are . . . ‘created and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law.’” Id. (quoting Castle Rock, 548 U.S.
at 756). See also Murphy v. Bd. of Educ. of Oceanside Union Free Sch. Dist., No. 03-CV-4113,
2005 WL 2305009, at *3 (E.D.N.Y. Sept. 20, 2005) (“A person’s interest or benefit constitutes a
legitimate claim of entitlement if it is supported by contractual or statutory language that might
be invoked at a hearing.” (internal quotation marks omitted)).
Plaintiff cites provisions of AACWA, and New York regulations implementing
AACWA’s requirements, without explaining their relevance. Am. Compl. ¶¶ 34–41. Even
assuming that these citations are meant to demonstrate Plaintiff and L.R.’s entitlement to foster
care maintenance payments, the laws cited only require that payments be made on behalf of
14

children who are in the custody of a state or local agency. Under AACWA, states receive federal
funding if they create plans for foster care and adoption assistance that comply with numerous
federal requirements. New York State Citizens’ Coal. for Children v. Carrion, 31 F. Supp. 3d
512, 514–15 (E.D.N.Y. 2014). AACWA only requires states to “make foster care maintenance
payments on behalf of [a] child . . . if . . . [t]he child’s placement and care are the responsibility
of—(i) the State agency administering the State plan . . . [or] (ii) any other public agency with
which the State agency administering or supervising the administration of the State plan has
made an agreement which is in effect.” § 672(a)(1), (2)(B). New York’s state plan does not
broaden this eligibility criteria. New York Social Services Law directs OCFS to “establish[]
standards of payment for care provided foster children.” N.Y. Soc. Serv. Law § 398-a. OCFS’
implementing regulations limit the definition of “foster child” to a child whose “care and
custody . . . have been transferred to an authorized agency.” 18 N.Y.C.R.R. § 427.2.
It is undisputed that DCYF is an “authorized agency” under OCFS regulations. Mem.
at 17; e.g., Am. Compl. ¶ 44. The Family Court vacated DCYF’s custody of L.R. on
April 25, 2014. Id. ¶ 111. The Court emphasizes that it was Plaintiff who sought custody of L.R.
after DCYF sent her a removal notice. Id. ¶ 104. While Plaintiff alleges, in conclusory fashion,
that DCYF “routinely encourages relatives to file for custody of their minor kin,” id. ¶ 71, she
does not allege any facts suggesting, for instance, that DCYF sent an erroneous removal notice to
goad her into petitioning for custody, that they misrepresented any facts to her, or that they
otherwise coerced her into petitioning for custody. More importantly, she does not allege that the
Moving Defendants had anything to do with her decision to seek custody of L.R.

15

In any event, when the Family Court granted Plaintiff custody of L.R. on April 25, L.R.
was no longer in the “care and custody” of an “authorized agency.” Consequently, he lost his
status as a foster child before DCYF terminated Plaintiff’s benefits. L.R.’s status change rendered
Plaintiff ineligible, under AACWA and New York law, to receive maintenance payments on his
behalf. See Meyers v. Kishimoto, 217 F. Supp. 3d 563, 578 (D. Conn. 2016) (finding no due
process violation for terminating a teacher with expired teaching certificate because she was no
longer a “teacher” within meaning of statute and “no longer ha[d] a reasonable expectation of
continued employment” provided to “teachers” by that statute); Coreia v. Schuylkill Cty. Area
Vocational-Technical Sch. Auth., 241 F. App’x 47, 50 (3d Cir. 2007) (holding that teacher with
expired teaching certificate lost “professional employee” status and no longer had a legitimate
claim of entitlement to continued employment as provided to “professional employees” by
statute). Therefore, Plaintiff and L.R. have no legitimate claim of entitlement to, and no
constitutionally protected interest in, foster care benefits.
Plaintiff’s Response does not challenge this analysis, but instead broadly asserts that
foster parents and children have a property interest in foster care maintenance payments. Resp.
at 12–13. This is legally irrelevant; as outlined above, L.R. was not a foster child when Plaintiff’s
benefits were terminated, and Plaintiff was not a foster parent. See N.Y. Soc. Serv. Law
§ 371(19) (“‘Foster parent’ shall mean any person with whom a child, in the care, custody or
guardianship of an authorized agency, is placed for temporary or long-term care.”). Plaintiff also
argues in her Response that her due process claim should survive dismissal so that she may
engage in discovery to find “statutes, regulations, agency handbooks and memoranda, and other
official pronouncements” that support her claim. Resp. at 12. However, this argument is
16

meritless. “[D]iscovery is authorized solely for parties to develop the facts in a lawsuit in which a
plaintiff has stated a legally cognizable claim, not in order to permit a plaintiff to find out
whether [s]he has such a claim.” Podany v. Robertson Stephens, Inc., 350 F. Supp. 2d 375, 378
(S.D.N.Y. 2004). Plaintiff has not alleged that she or L.R. have a property interest in foster care
maintenance payments and has, therefore, failed to allege that the termination of these payments
violated due process.
Second, Plaintiff fails to allege the personal involvement of any Moving Defendant in the
revocation of her foster care certification. In fact, she does not allege who revoked her
certification, but hints that the revocation was an administrative decision by DCYF. See Am.
Compl. ¶¶ 112 (quoting email sent by DCYF caseworker to other DCYF employees “regarding
the Lisa Johnson denial of kinship certification issue”), 119 (quoting letter sent to Plaintiff by
DCYF official explaining why Plaintiff’s foster care certification was revoked). As explained
above, a § 1983 claim requires a plaintiff to allege facts detailing the defendant’s personal
involvement in a violation of a federal right. Because Plaintiff does not allege the personal
involvement of any Moving Defendant in the revocation of her foster care certification, this
claim must be dismissed.
ii. Liberty Interest
Plaintiff, in a brief paragraph in her Response, asserts that the termination of her foster
care benefits violated her liberty interest in “rais[ing] children without undue government
interference” because, without these benefits, “the stability and wellbeing [sic] of [her] family” is
jeopardized. Resp. at 13. The right to raise one’s children without undue government interference
is a protected liberty interest, Stanley v. Illinois, 405 U.S. 645, 651 (1972), and this interest “has
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many avatars,” Franz v. United States, 707 F.2d 582, 595 (D.C. Cir. 1983). However, Plaintiff
provides no authority to suggest that the government must provide monetary assistance to a
family who is otherwise ineligible for such assistance to enable them to optimally enjoy this
liberty interest. Moreover, “the Due Process Clauses generally confer no affirmative right to
governmental aid, even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.” Rust v. Sullivan, 500
U.S. 173, 201 (1991) (quoting Webster v. Reproductive Health Servs., 492 U.S. 490, 507
(1989)). Therefore, Plaintiff fails to establish that she and L.R. were deprived of a liberty interest,
and her due process claims must be dismissed.
c. AACWA claim
Plaintiff asserts that the termination of her foster care benefits without a hearing violated
“federal statutes and regulations,” Am. Compl. ¶ 132, without specifying what federal laws were
allegedly violated. However, Plaintiff lists § 671(a)(12), a provision of AACWA, in the
“Statutory and Regulatory Scheme” portion of the Amended Complaint, Am. Compl. ¶ 34, and
both parties’ memoranda suggest that this is the statutory provision the Moving Defendants
allegedly violated. Mem. at 21; Resp. at 17. Therefore, the Court assumes that this is the case.
Section 671(a)(12) requires state plans to “provide[] for granting an opportunity for a fair
hearing before the State agency to any individual whose claim for benefits available pursuant to
[AACWA] is denied or is not acted upon with reasonable promptness.” Defendants argue that
AACWA does not create a private right of action and that Plaintiff fails to allege that Defendants
violated the Act. Mem. at 21–23. The Court finds that, even if AACWA does create a private
right of action, Plaintiff’s claim fails because § 671(a)(12) does not apply to her and L.R.
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Plaintiff has custody of L.R. He was not a foster child, and Plaintiff was not a foster
parent, at the time her benefits were terminated. AACWA’s benefits “are only available to
maintain the child while in foster care.” Maher v. White, 90-CV-4674, 1992 WL 122912, at *3
(E.D. Pa. June 2, 1992). Plaintiff, therefore, is not “any individual” with a “claim for benefits”
within the meaning of § 671(a)(12). See id. (holding that AACWA does not provide benefits for
“natural parents,” and concluding that, under § 671(a)(12), “natural parents, who have no claim
to the benefits, have no right to notice when they are denied”). Cf. Timmy S. v. Stumbo, 916
F.2d 312, 315 (6th Cir. 1990) (holding that foster parents were entitled to fair hearing under
§ 671(a)(12) because AACWA’s legislative history clearly indicated Congress’s intent to provide
fair hearing rights for foster parents); Claudio v. Dowling, 89 N.Y.S.2d 567, 574–75 (1997)
(“Because foster parents are beneficiaries of case plans, [foster parent] appellants fall within the
category of ‘any individual.’” (emphasis added)). Because Plaintiff and L.R. had no claim for
benefits under AACWA when Plaintiff’s benefits were terminated, they are not entitled to a fair
hearing. Therefore, Plaintiff fails to allege a violation of AACWA, and this claim must be
dismissed.
C. State Law Claims
Plaintiff “seeks to enforce pendent state procedural and substantive rights,” and asserts
that Defendants violated “New York State regulations.” Am. Compl. ¶¶ 11, 132. When a federal
court has original jurisdiction over claims in an action, it may exercise supplemental jurisdiction
over “all other claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). The Court declines to
exercise supplemental jurisdiction over Plaintiff’s state law claims because it has already
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dismissed every claim over which it has original jurisdiction. See § 1367(c) (providing that a
“district court[] may decline to exercise supplemental jurisdiction over a [state law] claim . . .
if . . . the district court has dismissed all claims over which it has original jurisdiction”). The
Court, therefore, dismisses the state law claims.
D. Leave to Replead
Plaintiff did not ask the Court for leave to amend any claims dismissed in this
Memorandum-Decision and Order. The Moving Defendants, though, ask the Court to dismiss
each claim asserted against them in the Amended Complaint without leave to amend, arguing
that allowing Plaintiff to further amend her pleading would be futile. Mem. at 1, 25. Rule 15 of
the Federal Rules of Civil Procedure provides that, after a party has “amend[ed] its pleading once
as a matter of course,” it may do so again “only with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a). The Court should allow leave to amend “[i]n the absence
of . . . undue delay . . . repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of
amendment....” Rusyniak v. Gensini, 629 F. Supp. 2d 203, 212 (N.D.N.Y. 2009) (alterations in
original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Allowing amendment of a
pleading is “futile” if the pleading as amended could not survive a motion to dismiss. Id.
“Furthermore, if amendment of the complaint would not cure the substantive defects of the
claim, leave to amend should be denied.” Jones v. Cty. of Suffolk, 236 F. Supp. 3d 688, 702
(E.D.N.Y. 2017).
The Court agrees with the Moving Defendants that granting Plaintiff leave to amend
would be futile. The Amended Complaint is replete with substantive defects. For instance, many
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of the claims asserted against the Moving Defendants are irreparable because they are barred by
the Eleventh Amendment. Similarly, Plaintiff’s AACWA and due process claims related to the
termination of her foster care benefits are insufficient as a matter of law. Also, as explained
above, the factual allegations surrounding the revocation of Plaintiff’s foster care certification are
sparse and contain no hint that any of the Moving Defendants were involved in this decision.
Therefore, leave to amend this claim would be futile because “it is hardly self-evident that
[Plaintiff] could transform the facts pleaded into a sufficient allegation” of a § 1983 claim.
Chandradat v. Navillut Tile, No. 03-CV-10093, 2004 WL 2186562, at *7 (S.D.N.Y. Sept. 28,
2004) (quoting In re Am. Express Co. Shareholder Litig., 39 F.3d 395, 402 (2d Cir. 1994)). For
these reasons, the claims asserted in Plaintiff’s Amended Complaint against the Moving
Defendants are dismissed without leave to amend.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Moving Defendants’ motion to dismiss (Dkt. No. 49) is

GRANTED for failure to state a claim; and it is further
ORDERED, that the claims asserted in the Amended Complaint (Dkt. No. 36) against
OCFS, Cullen, and Poole are DISMISSED without leave to amend; and it is further
ORDERED, that OCFS, Cullen, and Poole are DISMISSED as defendants in this action;
and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on
Plaintiff in accordance with the Local Rules.

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IT IS SO ORDERED.

DATED:

December18, 2017
Albany, New York

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