MARK G. v. SABOL

ROSENBLATT, J.

This appeal involves actions against New York City child welfare officials. Plaintiffs are eleven children (and the estate of a twelfth) from four families. They assert that they were dependent upon defendants' child welfare system and that they suffered abuse or neglect in their homes or foster homes. These actions were originally part of a proposed class action suit seeking injunctive relief and damages. Plaintiffs, however, withdrew their claims against the State, along with their request for class certification and injunctive relief. In seeking to hold defendants liable under the remaining claims, plaintiffs in a series of complaints have asserted multiple causes of action under a variety of theories.

At issue before us is the resolution of defendants' motions, denominated as motions for summary judgment. They are more appropriately characterized as motions to dismiss the pleadings for failure to state a cause of action. Despite contrary nomenclature, the courts below in actuality addressed plaintiffs' allegations in that context, as do we (see,Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274-275).

New York State Social Services Law

Plaintiffs make claims for money damages under two distinct Titles of this law: Title 4 of Article 6 ("Preventative Services for Children and Their Families") and Title 6 of Article 6 ("Child Protective Services").

In determining whether a private right of action for money damages exists for violation of a New York State statute, this Court has established the following three-part test:

"(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted;

(2) whether recognition of a private right of action would promote the legislative purpose; and

(3) whether creation of such a right would be consistent with the legislative scheme"( Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633).

Title 4 of Article 6 of the Social Services Law As a part of the Child Welfare Reform Act of 1979 (L 1979, ch 610, 611), the Legislature enacted this provision, its purpose is to:

"delineate and implement a State policy of permanent homes for children who are currently in foster care or at risk of entering foster care by

— placing increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble only by removing the child from the family;

— providing for increased monitoring of the foster care system with safeguards against abuse and for penalties where violations are found to ensure that the needs of children in foster care are appropriately met; and,

— making necessary changes in adoptive services to provide appropriate homes when adoption is needed" (Governor's Memorandum, 1979 McKinney's Session Laws of New York, at 1814 [emphasis added]).

The Legislature declared its intention to implement Title 4 by providing added funding for preventative services (See, L 1979, ch 610, § 1). It also amended related Titles to establish utilization review standards for increased monitoring of children to assure that Title 4's preventative services are carried out (See, L 1979, ch 611, § 7). Furthermore, it imposed fiscal penalties on noncompliant agencies (See, L 1979, ch 610, §§ 7, 9).

The history of Title 4 establishes that the Legislature intended to create financial incentives for local social services districts to provide preventive services. As Senator Joseph Pisani stated in his sponsoring memorandum: "This bill addresses these problems in a comprehensive manner. * * * Furthermore, the bill holds districts accountable for meeting these standards or suffer loss of reimbursement" (1979 N.Y.S Legis Ann, at 353). Similarly, Assemblyman Howard Lasher in his Memorandum in support of the bill stated:

"The purpose of this bill is to restructure the financing and management of child welfare services in New York State by establishing a new funding mechanism for services which are alternatives to foster care, strengthening accountability mechanisms for foster care, development and use of standardized assessment and placement tools, increased State monitoring of the necessity and appropriateness of foster placement and limits on the availability of foster care reimbursement" (1979 N.Y.S Legis Ann, at 355).

We agree with plaintiffs that they are members of the class for whom Title 4 was enacted, and that a private right of action for money damages could arguably promote the Title's goals. However, the third factor — the one this Court has deemed the most critical (see, Carrier v. Salvation Army, 88 N.Y.2d 298) — is not satisfied. Recognition of such a private right of action under Title 4 would not be consistent with the legislative scheme. The legislative approach centered on improved monitoring and on penalizing local social services districts with a loss of state reimbursement of funds for their failure to provide services or meet the standards mandated by the statute. The Legislature specifically considered and expressly provided for enforcement mechanisms. As Senator Pisani's sponsoring memorandum makes clear, the provisions of Title 4 were enacted as the "comprehensive" means by which the statute accomplishes its objectives. Given this background, it would be inappropriate for us to find another enforcement mechanism beyond the statute's already "comprehensive" scheme.

The statute's goals are advanced by legislative action in providing and allocating appropriate funding. If the statute were opened to private causes of action for money damages the funding scheme would be affected, perhaps significantly. Allocations of money and government resources would be rechanneled, no longer to be based on administrative judgments, but driven, at least in part, by tort law principles. The legislature has the authority to determine whether opening the statute to private tort law enforcement would advance the objectives of child and family welfare or skew the distribution of resources. Considering that the statute gives no hint of any private enforcement remedy for money damages, we will not impute one to the lawmakers.

Title 6 of Article 6 of the Social Services Law

This enactment was one of several legislative initiatives to counter the breakdown in the child protective system that was brought to the Legislature's attention in the late 1960s (Report of the Assembly Select Committee on Child Abuse, at ii [1972]). The purpose of Title 6, as stated in its preamble, is:

"to encourage more complete reporting of suspected child abuse and maltreatment and to establish in each county of the state a child protective service capable of investigating such reports swiftly and competently and capable of providing protection for the child or children from further abuse or maltreatment and rehabilitative services for the child or children and parents involved" (Social Services Law § 411).

In seeking to encourage early reporting of child abuse, the Legislature determined that immunity from civil and criminal liability was indispensable. Protection from liability would remove "the fear of an unjust lawsuit for attempting to help protect a child" (Report of the Assembly Select Committee on Child Abuse, at 32-33 [1972]; see also, Budget Report on Bills, Bill Jacket, L 1973, ch 1039 ["Requires designated persons to report suspected cases of child abuse or maltreatment immediately * * * [and] permits any person to make such a report and provides immunity for all acting in good faith."]).

Section 419, as it existed at the relevant time, contained the following immunity provision:

"Any person, official, or institution participating in good faith in the providing of a service pursuant to section [424 of the Social Services Law], the making of a report, the taking of photographs, or the removal or keeping of a child pursuant to this title shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions" (emphasis added).

Plaintiffs assert an implied private right of action for money damages for defendants' alleged violations of Social Services Law § 424. They rely on the above-quoted immunity provision of Social Services Law § 419 to support their contention that such an action exists for a failure to comply with the provisions of Title 6, including Social Services Law § 424.

Section 419's legislative history, however, reveals that it was intended to provide immunity only with respect to civil or criminal liability that would otherwise result from acts taken by persons, officials or institutions in a good faith effort to comply with specific provisions of the Social Services Law (see,Straton v. Orange County Dept. of Social Servs., 217 A.D.2d 576, 577; Dagan v. Brookdale Hosp. Med. Ctr., 202 A.D.2d 385). There is no indication that section 419 was intended to apply to failures to provide the services required by the Social Services Law.

Indeed, the Legislature specifically created a private right of action in the very next section. Social Services Law § 420 provides for criminal and civil liability for the willful failure of persons, officials or institutions required by Title 6 to report cases of "suspected child abuse or maltreatment." If the Legislature had intended for liability to attach for failures to comply with other provisions of Title 6, it would likely have arranged for it as well.

The enforcement mechanisms of Title 6 have not escaped legislative review. In fact, the Legislature's subsequent amendments to the enforcement scheme of Title 6 evinced an emphasis on funding mechanisms and the development of performance standards by the State Department of Social Services (see, L 1988, ch 707; L 1995, ch 83, §§ 229, 231; L 1998, ch 58, Pt C, § 87; see also, Mem of State Executive Dept., 1988 McKinney's Session Laws of NY, at 2138-2140). The Legislature specifically concentrated on the statutory scheme's enforcement provisions, which, except for the unique motivations that underlie Social Services Law § 420, have never included private rights of action for money damages. In sum, we conclude that a private right of action for money damages can not be fairly implied from Title 6 of the Social Services Law (see, Sheehy v. Big Flats Community Day, 73 N.Y.2d at 633, supra).

Plaintiffs' Due Process Claims

Plaintiffs assert that when they were placed in foster care they remained within the ambit of the defendants' custodial responsibility, where defendants were obligated to take supervisory and interventive steps to keep them free from harm. They further allege that while they were in foster care defendants failed to accord them the protective services to which they were entitled under Titles 4 and 6 of the Social Services Law. Based on these claims, plaintiffs contend that they have been denied due process of law. Plaintiffs apparently do not include non-foster care children within this claim.

See, DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 201.

Plaintiffs have asserted violations of the substantive component of the due process clause of the Fourteenth Amendment of the United States Constitution — sometimes called substantive due process — as well as violations of the procedural component of the due process clause. In general, procedural due process claims challenge the procedures used by the government in effecting a deprivation of a right, whereas substantive due process claims challenge the action itself. Thus, substantive due process implicates "the essence of state action rather than its modalities." In one commentator's formulation, "procedural due process differs from substantive due process by focusing not on what a person has been deprived of, but rather on how the deprivation was accomplished."

See, Griffin v. Strong, 983 F.2d 1544, 1547 (10^th Cir); Sierra Lake Reserve v. The City of Rocklin, 938 F.2d 951, 956-957 (9^th Cir), opn vacated in part 987 F.2d 662.

See, Amsden v. Moran, 904 F.2d 748, 753 (1^st Cir), cert denied 498 U.S. 1041.

Note, Forum Non Conveniens in the Absence of an Alternate Forum, 86 Colum L Rev 1000, 1015 (1986).

The classic procedural due process case arises when the government acts to deny or curtail someone's life, liberty or property interest and defends its action by asserting that it employed fair procedures in furtherance of a legitimate governmental objective (see, Schall v. Martin, 467 U.S. 253 [pretrial juvenile detention]; Vitek v. Jones, 445 U.S. 480 [prison to mental hospital transfer]; Addington v. Texas, 441 U.S. 418 [civil commitment]). That is not the case before us.

Here, deprivation or denial is not the governmental goal. This case does not involve an attempt by the government to deprive the plaintiffs of a right that carries with it a pre-deprivation procedure. The government may not decide to deny a foster child's safety or entitlements and seek to justify the denial by showing that its processes or procedures were fair. No amount of procedure can justify the wrongful denial of an entitlement. Moreover, merely asserting a denial of a statutory entitlement does not make out a claim of procedural due process. As the United States Supreme Court held in Olim v. Wakinekona, "[p]rocess is not an end in itself" ( 461 U.S. 238, 250; see also,Hewitt v. Helms, 459 U.S. 460, 469). We conclude that plaintiffs have not adequately pleaded a violation of procedural due process, and that those causes of action should be dismissed.

Plaintiffs also assert violations of the substantive component of the due process clause of the United States Constitution. Three United States Supreme Court cases are critical to our treatment of this issue. In Estelle v. Gamble ( 429 U.S. 97) the Court held that the State owes a duty to those whom it has placed in its custody, so that when a prisoner demonstrates that the State exhibited "deliberate indifference" to the prisoner's medical needs, the Constitution's guarantees against cruel and unusual punishment are violated. Although Estelle was an Eighth Amendment case, the Supreme Court has characterized the government's deliberate indifference toward the prisoner inEstelle as a violation of substantive due process (see, DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 198, n 5,supra; Whitley v. Albers, 475 U.S. 312, 326-327).

Six years later, the Supreme Court in Youngberg v. Romeo ( 457 U.S. 307, 315) addressed the government's obligations to a person whom it committed to a facility for the mentally retarded. The Court stressed that people who are in the State's custody are dependent on the government for their basic needs ( 457 US, at 324). The Supreme Court held that inasmuch as Romeo was not a prisoner, the Estelle "deliberate indifference" standard was inappropriate. The Court ruled that Romeo — a person involuntarily committed and thereby dependent on the government for basic needs — was "entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish" ( 457 US, at 322). The Court stated that as to persons so confined the State owes a duty to accord such services as are necessary to insure their reasonable safety. The litigants in Romeo also agreed that the State owed a duty to provide such persons "adequate food, shelter, clothing, and medical care" (Romeo, 457 US, at 324). In such a setting an actionable claim is made out if and when a decision by the State through its professional administrators with respect to such services "is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment" (supra, 457 US, at 323).

Estelle and Romeo are the only two cases in which the Supreme Court recognized monetary damage claims based on the substantive component of the due process clause. Neither involved children in foster care. Thereafter, in 1989, the United States Supreme Court decided DeShaney v. Winnebago County Dept. of Social Services ( 489 U.S. 189), the only case in which it touched upon the issue of substantive due process in the context of children in foster care. The Court held that a child who suffered harm while in the custody of his father has no claim based on the substantive component of the due process clause. The Court, however, in a footnote, stated: "Had the State by the affirmative exercise of its power removed [the child] from free society and placed him in a home operated by its agents, we might have a situation sufficiently analagous to incarceration or institutionalization to give rise to an affirmative duty to protect" ( 489 US, at 201 n9). The Court then cited several cases by way of illustration, but expressly disclaimed any view on the validity of that analogy.

In the case before us, the original complaint was drafted before the Supreme Court decided DeShaney. It was drawn as a putative class action that included various plaintiffs, some of whom were allegedly harmed while in foster care, others while living with their parents. Plaintiffs commenced this litigation employing an array of claims designed to address numerous facets of the child welfare system and to test the availability of a host of remedies, including various forms of injunctive relief and putative class certification. The complaints had been conceived and drawn with a broad thrust that did not contemplate or take aim at the more specific and essential elements that would enable them to withstand a motion to dismiss for failure to articulate a substantive due process violation. Although the complaints are abundant with allegations relating to defendants' failure to provide plaintiffs with family social services, we are left on this appeal only with the sufficiency of the complaints insofar as they seek monetary damages. In addressing plaintiffs' claims for money damages pursuant to the substantive component of the due process clause, the Appellate Division determined, and we agree, that the complaints did not meet the Estelle "deliberate indifference" standard. The Appellate Division, however, did not address the Romeo "professional judgment" standard.

Even though in our view the Romeo standard is a better fit, we conclude that plaintiffs have not articulated a cause of action under Romeo. In Romeo and Estelle the United States Supreme Court identified a narrow set of constitutional entitlements to basic necessities, arising out of conditions of total dependence in which the State itself had placed those institutionalized plaintiffs. Romeo and Estelle, however, do not support any substantive due process right to monetary redress for the defendants' alleged failure to provide the array of social services claimed by plaintiffs here. Moreover, the crux of the plaintiffs' complaints here is the defendants' alleged failure to provide protective and preventive services to the plaintiffs' families in order to avoid foster care placement and keep them at home in a safe environment, or to minimize their stay in foster care through family rehabilitation services, thereby expediting their return to a safe home environment. Under DeShaney, however, any substantive due process rights of foster children cannot be extended to entitlement to preventive and protective services before placement in care, or to family social services during placement. The allegations of harm or denial of needed medical or other services to the children while in foster care are very much incidental to the foregoing primary complaints that are pleaded, and since plaintiffs never articulated a violation of the Romeo standard of care, an independent claim for money damages for injuries in foster care based on such omissions cannot be implied. Considering that this Court has never had occasion to deal with the contours of the substantive component of the due process clause in the context of a child welfare case, neither the parties nor the courts below had a precedential basis on which to proceed. We therefore affirm the dismissal of those claims with leave to replead.

See, e.g., Kearse, Abused Again: Competing Constitutional Standards for the State's Duty to Protect Foster Children, 29 Colum. J.L. Soc. Probs. 385 (1996).

Common Law Negligence

In their briefs, the parties have addressed the viability of the so-called common law tort causes of action. These causes of action are not pleaded separately, but are intertwined with a plethora of other causes of action and theories. Indeed, the complaints do not identify any common law duties claimed to be owed plaintiffs — as distinguished from the alleged breach of other governmental responsibility to furnish protective and preventative services, which form the primary bases for these actions.

We recognize, of course, that pleadings should be construed liberally, but it would be improvident for us to attempt to isolate and identify any common law claims and theories asserted on plaintiffs' behalf. Although we do not as a matter of law rule out the possibility of any such common law claims, we conclude that no viable common law claim has been pleaded and we therefore grant plaintiffs leave to replead. The parties' remaining contentions are without merit.

Accordingly, the order of the Appellate Division should be modified, without costs, by dismissing the remaining causes of action, and, as so modified, affirmed. The certified question should be answered in the negative.