New Hope Family Servs., Inc. v. Poole

493 F.Supp.3d 44

NEW HOPE FAMILY SERVICES, INC., Plaintiff,

v.Sheila J. POOLE, in her official capacity as Acting Commissioner for the Office of Children and Family Services for the State of New York, Defendant.

5:18-CV-1419 (MAD/TWD)

United States District Court, N.D. New York.

Signed October 5, 2020

OF COUNSEL: DAVID A. CORTMAN, ESQ., JACOB P. WARNER, ESQ., ERIK W. STANLEY, ESQ., ALLIANCE DEFENDING FREEDOM, 1000 Hurricane Shoals Road, NE, Suite D1100, Lawrenceville, Georgia 30078, Attorneys for Plaintiff.

OF COUNSEL: JONATHAN A. SCRUGGS, ESQ., JEANA HALLOCK, ESQ., JEREMIAH GALUS, ESQ., ROGER GREENWOOD BROOKS, ESQ., ALLIANCE DEFENDING FREEDOM - AZ OFFICE, 15100 N. 90^th Street, Scottsdale, Arizona 85260, Attorneys for Plaintiff.

OF COUNSEL: ROBERT E. GENANT, ESQ., OFFICE OF ROBERT E. GENANT, 3306 Main Street, Suite B, P.O. Box 480, Mexico, New York 13114, Attorneys for Plaintiff.

OF COUNSEL: ADRIENNE J. KERWIN, AAG, OFFICE OF THE NEW YORK, STATE ATTORNEY GENERAL, The Capitol, Albany, New York 12224, Attorneys for Defendant.

MEMORANDUM-DECISION AND ORDER

Mae A. D'Agostino, U.S. District Judge:

I. INTRODUCTION

Plaintiff New Hope Family Services, Inc. ("New Hope") commenced this civil rights action on December 6, 2018 challenging the constitutionality of the New York Office of Children and Family Services ("OCFS") interpretation and application of 18 N.Y.C.R.R. § 421.3(d). See Dkt. No. 1. On December 12, 2018, New Hope filed a motion for a preliminary injunction seeking to prevent OCFS from revoking New Hope's perpetual authorization to place children for adoption during the pendency of this litigation. See Dkt. No. 15. On January 14, 2019, OCFS cross-moved to dismiss the complaint in its entirety. See Dkt. No. 34. The Court granted OCFS's motion to dismiss in its entirety and denied New Hope's motion for a preliminary injunction as moot. See Dkt. No. 38. New Hope timely appealed. See Dkt. No. 40. On July 21, 2020, the Second Circuit Court of Appeals issued an order reversing this Court's dismissal of New Hope's Free Exercise and Free Speech claims and remanded this case for consideration of the motion for a preliminary injunction with specific instructions that the Court is bound to follow, and also noted that any appeal would be returned to the same panel. See Dkt. Nos. 44, 45. Currently before the Court is Plaintiff's motion for a preliminary injunction. See Dkt. No. 15.

II. BACKGROUND

A. Regulatory Scheme

In September 2010, New York State amended its Domestic Relations Law to codify the right to adopt by unmarried adult couples and married couples regardless of sexual orientation or gender identity. See 2010 S.B. 1523, Ch. 509; N.Y. Dom. Rel. Law § 110. "New York law authorizes the Commissioner of OCFS to enforce laws and rules pertaining to adoption." New Hope Family Servs. v. Poole , 966 F.3d 145, 153 (2d Cir. 2020) (citing N.Y. Soc. Serv. Law § 34(3)(e) ). Pursuant to that authority, in January 2011, OCFS informed authorized adoption agencies in New York that the amendment brought the Domestic Relations Law into compliance with existing case law and was "intended to support fairness and equal treatment of families that are ready, willing and able to provide a child with a loving home." After providing further guidance, adoption agencies were advised that, among other things, "discrimination based on sexual orientation in the adoption study assessment process is prohibited."

In November 2013, OCFS promulgated 18 N.Y.C.R.R. § 421.3(d) which, in accordance with existing law, prohibits "discrimination and harassment against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability" and requires that agencies authorized by New York to provide adoption services "shall take reasonable steps to prevent such discrimination or harassment by staff and volunteers, promptly investigate incidents of discrimination and harassment, and take reasonable and appropriate corrective or disciplinary action when such incidents occur." 18 N.Y.C.R.R. § 421.3(d).

"Adoption services in New York can only be provided by ‘authorized agencies,’ i.e. , entities incorporated or organized under New York law with corporate or legal authority ‘to care for, to place out or to board out children.’ " New Hope , 966 F.3d at 150 (quoting N.Y. Soc. Serv. Law §§ 371(10)(a), 374(2) ). Agencies authorized to provide adoption services in New York must receive and respond to inquiries from, conduct orientation sessions for, and offer OCFS-approved applications to prospective parents. See 18 N.Y.C.R.R. § 421.15. After an adoption application is received, an adoption study must be completed. See id. at § 421.13. An adoption study must explore the following characteristics of prospective parents:

(1) capacity to give and receive affection;

(2) ability to provide for a child's physical and emotional needs;

(3) ability to accept the intrinsic worth of a child, to respect and share his past, to understand the meaning of separation he has experienced, and to have realistic expectations and goals;

(4) flexibility and ability to change;

(5) ability to cope with problems, stress and frustration;

(6) feelings about parenting an adopted child and the ability to make a commitment to a child placed in the home; and

(7) ability to use community resources to strengthen and enrich family functioning.

Id. at § 421.16(a). An application may only be rejected if (1) an applicant does not cooperate with the adoption study; (2) an applicant is "physically incapable of caring for an adoptive child;" (3) an applicant is "emotionally incapable of caring for an adopted child;" or (4) an applicant's approval "would not be in the best interests of children awaiting adoptions." Id. at § 421.15(g). Once an application is approved, the agency must add the applicant to the adoptive parent registry. See id. at §§ 421.15(i), 424.3(a).

"Authorized agencies can then board such children in foster homes or place them in prospective adoptive homes based on the agencies’ assessment of the children's ‘best interests.’ Most relevant here, authorized agency approval, or consent, is required to finalize the adoption of any child placed by that agency." New Hope , 966 F.3d at 151 (quoting N.Y. Dom. Rel. Law §§ 111(1)(f), 113(1) ). In making placement decisions, the agency must consider, among other things, (1) the ages of the child and prospective parent(s); (2) "the physical and emotional needs of the child in relation to the characteristics, capacities, strengths and weaknesses of the adoptive parent(s);" (3) "the cultural, ethnic or racial background of the child and the capacity of the adoptive parent to meet the needs of the child with such a background;" and (4) the ability of a child to be placed in a home with siblings and half-siblings. See id. Additionally, agencies must

[m]ake an effort to place each child in a home as similar to and compatible with his or her religious background as possible with particular recognition that section 373(3) of the Social Services Law requires a court, when practicable, to give custody through adoption only to persons of the same religious faith as that of the child.

Id. at § 421.18(c). Further, the Social Services Law provides that, "so far as consistent with the best interests of the child, and where practicable," the religious wishes of the birth parents should be honored. See N.Y. Soc. Serv. Law § 373(7).

B. New Hope Family Services

When an entity seeks to facilitate adoptions in New York, it must qualify as an "authorized agency" under the law before it may provide those services. See N.Y. Soc. Serv. Law § 371(10)(a) ; N.Y. Soc. Serv. Law § 374(2). New Hope is an "authorized agency" with the authority to "place out or to board out children ...," N.Y. Soc. Serv. Law § 371(10)(a), and "receive children for purposes of adoption." N.Y. Dom. Rel. Law § 109(4). As an "authorized agency," New Hope must be "incorporated or organized under the laws of this state with corporate power or empowered by law to care for, to place out or to board out children ... [and] shall submit and consent to the approval, visitation, inspection and supervision of such office as to any and all acts in relation to the welfare of children performed or to be performed under this title." N.Y. Soc. Serv. Law § 371(10)(a). Additionally, OCFS must approve an agency's certificate of incorporation. See id. at § 460-a.

In 1965, Evangelical Family Service, Inc., New Hope's predecessor agency, obtained a two-year certificate of incorporation from New York's Board of Social Welfare authorizing it "to accept legal custody and guardianship of children; to provide protective service for children; to provide foster care service to child[ren] and unwed mother[s]; to place children for adoption; and [to] function in complete cooperation with all existing social welfare agencies." New Hope , 966 F.3d at 155-56 (quotation omitted). In 1967, New York made Evangelical Family Service's certificate of incorporation "perpetual." Id. at 156.

C. The Complaint

In 1958, Pastor Clinton H. Tasker founded what became New Hope Family Services as a Christian ministry to care for and find adoptive homes for children whose birth parents could not care for them. See Dkt. No. 1 at ¶ 3. New Hope dedicates a considerable portion of the complaint setting forth its religious beliefs, which the Court will not fully recount here. The Court fully accepts that New Hope and its employees have these sincerely held religious beliefs.

It is because of these religious beliefs that "New Hope will not recommend or place children with unmarried couples or same sex couples as adoptive parents." Id. at ¶ 153. New Hope's "Special Circumstances" policy states, in part, as follows:

If the person inquiring to adopt is single ... [t]he Executive Director will talk with them to discern if they are truly single or if they are living

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