     14-3999
     Haynes v. Johnson

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of October, two thousand fifteen.
 5
 6       PRESENT: RALPH K. WINTER
 7                DENNIS JACOBS,
 8                PIERRE N. LEVAL,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       ALICE HAYNES,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-3999
16
17       JOHN JOHNSON,*
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        CAROLYN A. KUBITSCHEK, Lansner &
22                                             Kubitschek, New York, New York.
23



                *
                  The Clerk of Court is directed to amend the
         official caption as shown above.
                                                  1
 1   FOR APPELLEE:               BARBARA D. UNDERWOOD, Solicitor
 2                               General, Anisha S. Dasgupta,
 3                               Deputy Solicitor General,
 4                               Matthew W. Grieco, Assistant
 5                               Solicitor General of Counsel (on
 6                               the brief), for Eric T.
 7                               Schneiderman, Attorney General
 8                               of the State of New York, New
 9                               York, New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Southern District of New York (Katherine B.
13   Forrest, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.
18
19        Alice Haynes1 appeals from the judgment of the United
20   States District Court for the Southern District of New York
21   (Forrest, J.), granting summary judgment in favor of
22   defendant-appellee John Johnson, the former commissioner of
23   the New York State Office of Children and Family Services
24   (“OCFS”). We assume the parties’ familiarity with the
25   underlying facts, the procedural history, and the issues
26   presented for review.
27
28        Ms. Haynes raises a due process challenge to the
29   removal of her grand-niece from Ms. Haynes’s foster care.
30   The only claim remaining on this appeal is against John
31   Johnson in his personal capacity under 42 U.S.C. § 1983.
32   The district court granted summary judgment in favor of Mr.
33   Johnson on qualified immunity.2 We agree.
34


          1
              Following Ms. Haynes’s death on March 8, 2013, her
     son, Dirk Haynes, was substituted as plaintiff as the
     administrator of her estate.
          2
              The district court based its decision on the
     additional ground that Mr. Johnson was not “personally
     involved” in any of the purported unconstitutional conduct.
     See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). We
     do not consider the issue of personal involvement because
     qualified immunity is a sufficient ground for affirmance.
                                  2
 1        “The doctrine of qualified immunity protects government
 2   officials ‘from liability for civil damages insofar as their
 3   conduct does not violate clearly established statutory or
 4   constitutional rights of which a reasonable person would
 5   have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
 6   (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
 7   Courts may “avoid reaching difficult questions of
 8   constitutional law where there is no question that an
 9   objectively reasonable government official would not have
10   known his conduct was in violation of the Constitution, that
11   is, where the right asserted by the plaintiff is not clearly
12   established.” Hilton v. Wright, 673 F.3d 120, 126 (2d Cir.
13   2012). “A right is ‘clearly established’ when ‘[t]he
14   contours of the right [are] sufficiently clear that a
15   reasonable official would understand that what he is doing
16   violates that right.’” Jackler v. Byrne, 658 F.3d 225, 242
17   (2d Cir. 2011) (quoting Anderson v. Creighton, 483 U.S. 635,
18   640 (1987)) (alterations in original).
19
20        1. Haynes contends that the governing regulations were
21   deficient for failure to provide for a pre-removal hearing.
22   However, the United States Supreme Court has upheld New York
23   foster care removal procedures that are substantially
24   similar to those at issue here. See Smith v. Organization
25   of Foster Families for Equality and Reform, 431 U.S. 816
26   (1977) (“OFFER”). Without resolving the “complex and novel”
27   question whether foster parents have a protected liberty
28   interest, the Court held New York’s procedures “are adequate
29   to protect whatever liberty interest” foster parents may
30   have. Id. at 856. It was not unreasonable for Johnson to
31   consider that New York’s current procedures violate no
32   clearly established rights.
33
34        Ms. Haynes argues that kinship foster parents were
35   found to have a protected liberty interest in connection
36   with Connecticut’s (different) removal procedures. See
37   Rivera v. Marcus, 696 F.2d 1016 (2nd Cir. 1982). But New
38   York’s current procedures differ in critical respects: the
39   foster parent is afforded at least ten day’s notice prior to
40   removal, 18 N.Y.C.C.R. § 443.5(a)(1); at a pre-removal
41   conference, the foster parent may appear with counsel, is

                                  3
 1   advised of the reasons for removal, and may rebut, id. at §
 2   443.5(a)(2); a written decision is sent to the foster parent
 3   within five days of the conference, id. at § 443.5(c);
 4   appeal may be heard in an administrative hearing, and
 5   following that, in New York State Court, Id. at 443.5(c);
 6   N.Y. Soc. Serv. L. § 22(9).
 7
 8        Rivera emphasized that Connecticut’s procedures did not
 9   satisfy the kinship foster parent’s right to a “pre-removal”
10   hearing. However, New York regulations differ. They afford
11   a pre-removal conference, with an opportunity to be assisted
12   by counsel and present reasons why the child should not be
13   removed along with a written decision explaining the state’s
14   reasons for removal within five days, prior to a full
15   administrative fair hearing to challenge a removal decision.
16   It is not unreasonable to consider that the pre-removal
17   conference, coupled with the full administrative fair
18   hearing provided thereafter, satisfies due process,
19   especially given that all the other procedural safeguards
20   imposed by Rivera are present at the fair hearing. Cf.
21   Signet Const. Corp. v. Borg, 775 F.2d 486, 492 (2d Cir.
22   1985) (permitting a combination of informal pre-deprivation
23   hearing and formal post-deprivation hearing as consistent
24   with due process in the context of a contractor’s right to
25   timely payments for work performed under its contract with a
26   state agency).
27
28        It is not clear whether Rivera established a
29   categorical liberty interest for kinship foster parents or
30   whether the liberty interest it found depended on the
31   individual circumstances of the case. In light of the
32   possibility that Rivera established a case-by-case approach,
33   it is not at all clear that Haynes had the same protected
34   liberty interest as the one that was at issue in Rivera.
35   Rivera emphasized that the foster child and foster parents
36   had lived together as a family for several years prior to
37   the foster care agreement and that the natural parents had
38   shown no interest in the child in more than 12 years. See
39   696 F.2d at 1024-25 (“In these circumstances, we find that
40   Mrs. Rivera possesses an important liberty interest in
41   preserving the integrity and stability of her family.”

                                  4
 1   (emphasis added)). Ms. Haynes did not live together with
 2   her grand-niece until after the inception of the foster care
 3   agreement, and there is some record evidence to suggest that
 4   the birth mother was “diligently planning” for the prospect
 5   that her daughter would be returned to her.
 6
 7        2. Haynes contends that due process is violated by not
 8   automatically returning children to foster parents once a
 9   removal has been found erroneous, or by OCFS’s failing to
10   conduct a second hearing on the issue of return. No court
11   has ever held that such automatic return, or a second
12   hearing, is required to satisfy due process, and Rivera
13   itself does not contemplate automatic return as the remedy
14   after a finding that removal was inappropriate. See 696
15   F.2d at 1025 n.12 (“The years which have passed since the
16   Ross children were removed from the Rivera home will
17   militate against their removal from the home of the present
18   foster parents at any future hearing.”). The standard for
19   return is always the “best interests” of the child, not a
20   finding of erroneous removal. See Matter of Bennett v.
21   Jeffreys, 356 N.E.2d 277, 281 (N.Y. 1976) (“[W]hen there is
22   a conflict, the best interest of the child has always been
23   regarded as superior to the right of parental custody”).
24   Accordingly, it cannot be said that the failure to return,
25   or the failure of OCFS to hold a second hearing, violated a
26   clearly established right, let alone that it was violated by
27   Johnson.
28
29        3. Haynes also challenges the delay in affording her a
30   hearing. We have held as to natural parents that parents
31   must have an opportunity to be heard “at a reasonably prompt
32   time after the removal,” Gottlieb v. Cnty. of Orange, 84
33   F.3d 511, 520 (2d Cir. 1996), but we have never specified
34   how quickly hearings must be held when children are removed
35   from their foster parents.
36
37        We do not decide whether any of Ms. Haynes’s
38   constitutional rights were violated because Johnson would
39   not have reasonably understood that what he was doing
40   violated any clearly established due process rights. For
41   the foregoing reasons, Mr. Johnson was entitled to qualified

                                  5
1   immunity, and finding no merit in Ms. Haynes’s other
2   arguments, we hereby AFFIRM the judgment of the district
3   court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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