Storck v. Suffolk County Dept. of Social Services

62 F.Supp.2d 927

Ellen STORCK, Aaron Drew Storck, Courtney Drew, Dana Drew and Joshua Drew, Plaintiffs, v. SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, Gary Rosenthal, Individually and as an Assistant County Attorney with the Suffolk County Attorney's Office, Arza Feldman, Individually and as the law guardian appointed for the infants Courtney, Dana and Joshua Storck, Andrea McKenzie, Individually and as

the law guardian appointed for the infant, Aaron Drew Storck, Heidi Hilton, Individually and as the law guardian appointed for the infant, Aaron Drew Storck, Vivien Misshula, Individually and as a Case Worker employed by the Suffolk County Department of Social Services, Mary Peabody, Individually and as a Case Worker employed by the Suffolk County Department of Social Services, Dr. Mayer Sagy, Individually and as the Chief of Pediatric Intensive Care Unit of Schneider's Childrens Hospital, Dr. Philip Lanzkowski, Individually and as Chief of Staff of Schneider's Childrens Hospital, Dr. Gerald Novack, Individually and as a member of Pediatric Neurology Staff of Schneider's Childrens Hospital, Dr. Laura Nimkoff, Individually and as a Resident of the Pediatric Intensive Care unit of Schneider's Childrens Hospital, Dr. Herbert Schreier, Individually and as a witness for the Suffolk County Department of Social Services, and John Doe and all others as yet unidentified agents of the County of Suffolk, who have acted in violation of the rights of the plaintiffs herein, Defendants.

No. CV 97-2880.

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

August 11, 1999.

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Jeremiah B. McKenna, Staten Island, NY, for plaintiffs.

Robert J. Cimino, Suffolk County Attorney, Jeltje deJong, Assistant County Attorney, Department of Social Services, Gary Rosenthal, Vivien Misshula and Mary Peabody, Hauppauge, NY, for defendants Suffolk County.

Ahmuty, Demers & McManus, Christopher P. Cartier, Albertson, NY, for defendants McKenzie and Hilton.

Feldman & Feldman, Arza Rayches Feldman, Roslyn, NY, for defendant Feldman.

Schaub, Ahmuty, Citrin & Spratt, Todd McCauley, Lake Success, NY, for defendants Sagy, Lanzkowski, Novack and Nimkoff.

McAloon & Friedman, P.C., Theodore Rosenzweig, New York City, for defendant Schreier.

MEMORANDUM AND ORDER

WEXLER, District Judge.

This is a civil rights case the facts of which arise out of a New York State Family Court order that removed Aaron Storck from the custody of his mother, plaintiff Ellen Storck. The proceedings that led to Aaron's removal from his mother's custody date back to 1992 when a petition was filed in Suffolk County Family Court charging Ellen Storck with neglect. Briefly stated, the neglect petition charged that Ellen Storck suffered from Munchausen Sydrome by Proxy ("MSP"), a psychological disorder in which a person fabricates symptoms of illness in her child for the purpose of gaining the attention of medical personnel. The state family court found that Ellen Storck suffered from MSP, granted the neglect petition and removed Aaron Storck from his mother's custody.

Plaintiffs' civil rights action alleges that virtually every person involved in the family court proceedings violated plaintiffs' civil rights. The claims are alleged pursuant to 42 U.S.C. §§ 1983 and 1985 and sound in an alleged deprivation of rights without due process of law. Specifically, plaintiffs have sued: (1) the Suffolk County Department of Social Services, ("DSS"); (2) Gary Rosenthal, the Suffolk County Attorney charged with prosecuting the case against Ellen Storck; (3) Arza Feldman, Andrea McKenzie and Heidi Hilton, three attorneys who served as court-appointed law guardians for Aaron Storck and his siblings; (4) Vivien Misshula and Mary Peabody, case workers employed by the DSS; (5) Drs. Sagy, Lanzkowski, Novack and Nimkoff, physicians who treated Aaron Storck in 1992 and (6) Dr. Herbert Schreier, a physician who testified as an expert witness at the family court proceedings regarding Ellen Storck's mental health.

Presently before the court are the motions of all defendants to dismiss. For the reasons set forth below, the motions are granted in part and denied in part.

BACKGROUND

I. The Removal of Aaron Storck From Ellens Storck's Custody

As noted above, the factual basis for plaintiffs' civil rights action is the removal of Aaron Storck from Ellen Storck's custody and the proceedings related thereto. Aaron Storck was born in 1984. According to the complaint, Aaron suffered a Sudden Infant Death Syndrome ("SIDS") episode approximately one month after his birth and was thereafter diagnosed as suffering from apnea, a condition involving cessation of breathing and the failure of the automatic resumption of respiration.

After his 1984 hospitalization, Aaron was not again hospitalized until 1988, when it is alleged he was admitted to Huntington Hospital for an appendectomy. Plaintiffs allege that because of his history of apnea, Aaron was placed on a breathing monitor after his surgery. Plaintiffs allege that the breathing monitor registered several alarms during Aaron's 1988 hospitalization.

In 1989, allegedly after an apnea episode, Aaron was admitted to Huntington Hospital and shortly thereafter transferred to Schneider's Childrens Hospital ("Schneiders"), where he came under the care of pediatric neurologist, defendant Dr. Gerald Novack. According to plaintiffs, Dr. Novack referred Aaron to Johns Hopkins Hospital for further testing regarding his apnea. Plaintiffs' complaint states that the Johns Hopkins testing led to a diagnosis of apnea and the recommendation that Aaron be placed on a breathing monitor and that he sleep with his mother so that she could awaken him to stimulate his breathing if the monitor alarm sounded.

It was in 1992, during a hospitalization at Schneiders, that allegations regarding Ellen Storck and MSP began to surface. Specifically, Dr. Meyer Sagy, the Chief of Critical Care at Schneiders and Dr. Phillip Lanzkowski, the Chairman of Pediatrics at Long Island Jewish Medical Center, monitored Aaron and determined that he did not suffer from apnea. Plaintiffs' complaint contains allegations regarding Ellen Storck's refusal to consent to a tracheostomy, the facts surrounding which are unclear. What is clear, however, is that Drs. Sagy and Lanzkowski came to the opinion that Ellen Storck fabricated Aaron's apnea and hypothesized that Ellen Storck had MSP.

Shortly thereafter, the doctors at Schneiders contacted DSS and Aaron was detained at Schneiders from July 22, 1992 until August 6, 1992 when, after a hearing conducted on August 4, 1992, an order was signed by Suffolk County Family Court Justice David Freundlich, removing Aaron from Ellen Storck's custody and placing Aaron in foster care in Suffolk County. At the August 4 hearing, defendant Dr. Laura Nimkoff, a resident physician at Schneiders, testified that she contacted personnel at Johns Hopkins Hospital who informed her (contrary to the allegations in plaintiffs' complaint) that Aaron was not diagnosed with apnea during his testing at that facility.

The August 1992 hearing was followed by a December 1992 fact finding hearing before Justice Freundlich. Defendant Drs. Sagy, Lanzkowski and Novack testified at that hearing. Each testified that Ellen Storck suffered from MSP. Their testimony was supported by the testimony of nurses who were present during Aaron's stay at Schneiders. Also testifying at the December 1992 hearing was defendant Dr. Schreier, who was presented as an expert witness by DSS. Dr. Schreier testified that Ellen Storck suffered from MSP. Plaintiffs state that Dr. Schreier also testified regarding Ellen Storck's son, Joshua, and stated that Joshua did not suffer from a seizure disorder, as alleged by his mother, and that Ellen Storck's MSP most likely started with Joshua.

At the conclusion of the December 1992 hearing, Justice Freundlich found that plaintiff had neglected Aaron and ordered that he remain in foster care. Ellen Storck's older children were allowed to remain in her custody, under the supervision of DSS. Justice Freundlich's order was appealed and affirmed by the Appellate Division of the Supreme Court. See In re Suffolk County Department of Social Services on behalf of Aaron A. (Anonymous) a/k/a/ Aaron D. (Anonymous), 215 A.D.2d 395, 626 N.Y.S.2d 227 (1995). Defendant Feldman was appointed as the law guardian for Aaron's siblings. The Law Guardian Bureau of the Legal Aid Society, by staff attorneys McKenzie and Hilton, served as Aaron Storck's law guardians.

While in foster care in Suffolk County, Aaron's case was monitored by defendant Vivien Misshula, a case worker employed by DSS. Aaron Storck remained in foster care in Suffolk County until 1994, when custody was transferred to John and Diane Gintz, cousins of Ellen Storck who reside in Ohio. While under the care of the Gintzes in Ohio, defendant Mary Peabody, also a DSS case worker, became involved in Aaron's case.

After the December 1992 hearing, the Family Court conducted yearly reviews of Aaron Storck's case and extended the provision that he remain in foster care. At a hearing held on March 1, 1996. Ellen Storck's alleged violations of court orders were before the court. The court found Ellen Storck to be in contempt of its orders. The court sentenced Ellen Storck to six months imprisonment, which was suspended.

In January 1997, Ellen Storck moved to Ohio. On January 30, 1997, DSS filed a petition with the Family Court to extend Aaron's Ohio placement. At a hearing held on February 24, 1997, which was not attended by Ellen Storck, the court extended Aaron's Ohio placement. Shortly thereafter, Ellen Storck removed Aaron from Ohio and moved to Florida with all of her children.

In May of 1997, DSS moved to regain custody of Aaron from the Ohio placement. The application was granted on May 30, 1997 and an order was entered in Family Court on June...