Doe v. Whelan

12-4137-cv

Doe v. Whelan

In the

United States Court of Appeals

For the Second Circuit

________

AUGUST TERM, 2013

No. 12-4137-cv

JANE DOE, CHILD ONE DOE, CHILD TWO DOE, AND

CHILD THREE DOE, ALL THROUGH THEIR PARENT AND

NEXT FRIEND, JANE DOE,

Plaintiffs-Appellants.

v.

ANDREW WHELAN, DAVID WILLIAMS, KENNETH

MYSOGLAND,

Defendants-Appellees.*

________

Appeal from the United States District Court

for the District of Connecticut.

No. 08 CV 846 (TLM) ― Tucker L. Melançon, of the Western District

of Louisiana, sitting by designation.

________

ARGUED: AUGUST 22, 2013

DECIDED: OCTOBER 16, 2013

________

* The Clerk of Court is directed to amend the official caption in this case to conform to the

listing of the parties above.

2 No. 12-4137-cv

Before: CABRANES, HALL, and CHIN, Circuit Judges.

________

In this appeal we consider whether the United States District

Court for the District of Connecticut (Tucker L. Melançon, Judge, of

the Western District of Louisiana, sitting by designation) erred in

granting summary judgment to employees of the Connecticut

Department of Children and Families on the ground of qualified

immunity in this 42 U.S.C. § 1983 action seeking damages for the

removal of three children from their home without parental consent

or a court order.

We hold, based on undisputed facts in the record, that the

defendants’ decision to remove the children without parental

consent or a court order was justified by an objectively reasonable

belief that there was an imminent threat to the children’s safety.

Accordingly, we AFFIRM the judgment of the District Court.

________

KATHRYN EMMETT, Emmett & Glander, Stamford,

CT, for Plaintiffs-Appellants.

LYNN D. WITTENBRINK, Assistant Attorney

General, for George Jepsen, Attorney General of

Connecticut, Hartford, CT, for Defendants-

Appellees.

________

3 No. 12-4137-cv

JOSÉ A. CABRANES, Circuit Judge:

Plaintiff Jane Doe, on behalf of herself and her three children

(the “Doe Children” and, jointly with Doe, “plaintiffs”), brought this

42 U.S.C. § 1983 action against defendants Andrew Whelan, David

Williams, and Kenneth Mysogland, three employees of the

Connecticut Department of Children and Families (“DCF”).

Plaintiffs allege that the removal of the Doe Children from Doe’s

home without a court order violated their rights to due process of

law and to freedom from unreasonable seizures under the Fourth,

Fifth, and Fourteenth Amendments to the United States

Constitution. The United States District Court for the District of

Connecticut (Tucker L. Melançon, Judge, of the Western District of

Louisiana, sitting by designation) granted summary judgment to the

defendants on the basis of qualified immunity. Plaintiffs appealed.

We now hold, based on undisputed facts in the record, that

the defendants’ decision to remove the children without parental

consent or a court order was justified by an objectively reasonable

belief that there was an imminent threat to the children’s safety. The

defendants are therefore protected by the doctrine of qualified

immunity and, accordingly, we affirm the judgment of the District

Court.

I. BACKGROUND

A.

The events giving rise to this litigation began on April 30,

2005, when Richard Roe (“Roe”), the Doe Children’s father, was

arrested after assaulting a pregnant Jane Doe in their residence.

JA795; Red 4. The children―then aged seven years, four years, and

twenty-two months old―were at home during the assault. The DCF

4 No. 12-4137-cv

report of the incident authored by defendant Williams noted that the

“[f]ather seriously physically hurt [the] mother by punching her in

the face multiple times causing . . . significant injuries to the 5 week

pregnant mother.” Joint App’x 795. The report also noted that there

had been previous assaults, and that actions taken thus far were

“not adequate in regards [sic] to protecting [the] children.” Id.

On May 1, 2005, DCF entered into a “Service

Agreement/Safety Plan” with Doe, pursuant to which Doe agreed

not to have contact with Roe or to allow him to have contact with

the children. On May 2, 2005, the Superior Court of the State of

Connecticut issued a Family Violence Protective Order (the

“Protective Order”) against Roe which, among other things, directed

Roe to “[r]efrain from entering the family dwelling, the dwelling of

the Victim or wherever the Victim shall reside.” Joint App’x 168.

On May 5, following issuance of the Protective Order, DCF entered

into a new “Service Agreement/Safety Plan” with Doe, pursuant to

which Doe could be in contact with Roe but could not allow Roe

inside her home.

On June 3, 2005, defendant Whelan, a Social Work Supervisor

at DCF, learned that the case was being assigned to him. Whelan

spoke with prior DCF workers and reviewed the case files. At that

time, the previous two “Service Agreement/Safety Plans” governing

arrangements between Richard Roe, Jane Doe, and the Doe Children

had expired, but the Protective Order of the Superior Court directed

at Roe remained in effect.1

1 The District Court mistakenly stated that “Jane Doe violated two DCF Service

Agreement/Safety Plans in which she agreed not to let the Doe Children’s father into the

home and to contact the police if he sought to gain entry.” Doe v. Whelan, No. 08-846

(TLM), 2012 WL 4056723, at *6 (D. Conn. Sept. 14, 2012).

5 No. 12-4137-cv

On June 4, 2005, Whelan went to Doe’s home in New Canaan,

Connecticut, accompanied by two New Canaan police officers, to

conduct a “DCF welfare check.” Joint App’x 206. Upon arrival,

Whelan noticed that Roe’s car was in the driveway and his personal

items were in the house. In response to questioning, Doe eventually

admitted that she had permitted Roe to accompany her and the

children to her home—in violation of the Superior Court’s Protective

Order—so that Roe could “tuck” the children into bed. While at the

home, Whelan also observed Roe run into the nearby woods with no

shirt or shoes, likely having jumped out of a second-story window.

Whelan promptly sought and received authorization from

defendant Mysogland, a Program Supervisor at DCF, to remove the

children pursuant to Connecticut General Statute § 17a-101g(f),

which authorizes DCF to remove children from the custody of their

parents for up to ninety-six hours if DCF “has probable cause to

believe that the child or any other child in the household is in

imminent risk of physical harm from the child’s surroundings and

that immediate removal from such surroundings is necessary to

ensure the child’s safety . . . .”2 Conn. Gen. Stat. § 17a-101g(e). The

children were removed at 9:40 p.m. and transported to the home of

Richard Roe’s sister in Branford, Connecticut.

2 Defendant Williams was named as the authorizing officer on the June 4 notice of

“Immediate Removal/96-Hour Hold of Child(ren).” Joint App’x 204. Williams, who was

Whelan’s immediate supervisor, was vested with the authority to conduct removals

without court orders. It is undisputed, however, that Williams was not involved in the

June 4 removal. Rather, Mysogland told Whelan to put Williams’s name on the form

instead of Mysogland’s for personal reasons. Mysogland then notified Williams that his

name had been used, and Williams agreed with the removal decision. The District Court

granted summary judgment for Williams on the ground that he was not involved in the

removal. Doe, 2012 WL 4056723, at *3. Insofar as Doe’s appeal challenges this aspect of

the District Court’s order we affirm for the reasons stated by the District Court.

6 No. 12-4137-cv

The following Tuesday, June 7, 2005, Judge A. William

Mottolese of the Superior Court of Connecticut issued three ex parte

Orders of Temporary Custody (“OTC”), which temporarily vested

custody of the three children with DCF. On July 13, 2005,―after a

two-day evidentiary hearing at which Doe and Roe were

represented by separate counsel―Judge Carl E. Taylor of the

Superior Court for Juvenile Matters issued an order vesting custody

with DCF based on a finding that “each of the children is in

immediate physical danger of [his or her] surroundings and that

continuation in their home is contrary to their welfare.” Doe v.

Whelan, No. 08-846 (TLM), 2012 WL 4056723, at *2 (D. Conn. Sept. 14,

2012) (quoting July 13, 2005 Order). The Doe Children remained

with Roe’s sister from June 4 until September 6, 2005, when Judge

Mottolese conducted another hearing in which the Doe Children

were adjudicated neglected—pursuant to a stipulation by both Doe

and Roe—and returned to Doe’s custody under protective

supervision for one year. Joint App’x 897. Both Doe and Roe were

ordered to comply with “Specific Steps” the violation of which could

result in incarceration. Id.

B.

Plaintiffs brought this suit on June 4, 2008, seeking damages

pursuant to 42 U.S.C. § 1983. They alleged that, by removing the Doe

children from their home in the absence of a court order, the

defendants “deprived plaintiffs of their rights to due process and to

be free from unreasonable seizures under the 4th, 5th and 14th

Amendments.” Complaint ¶ 1. On September 14, 2012, the District

Court granted the defendants’ motion for summary judgment,

concluding, in relevant part, that the defendants’ removal of the

children from Doe’s home was “objectively reasonable” in the

7 No. 12-4137-cv

circumstances, and therefore, that they were entitled to qualified

immunity. Doe, 2012 WL 4056723, at *4-7.

Plaintiffs timely appealed.

II. DISCUSSION

Plaintiffs argue that the District Court “erred in granting

summary judgment to the defendants on the basis of qualified

immunity.”3 Appellant’s Br. 1. We review de novo an order granting

summary judgment and “resolv[e] all ambiguities and draw[ ] all

permissible factual inferences in favor of the party against whom

summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d

Cir. 2010) (internal quotation marks omitted). We affirm when

“there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

As we have explained, “in emergency circumstances, a child

may be taken into custody by a responsible State official without

court authorization or parental consent.” Southerland v. City of New

York, 680 F.3d 127, 149 (2d Cir. 2012) (internal quotation marks

omitted). Such a state official is entitled to qualified immunity from

actions under 42 U.S.C. § 1983 “unless the official's conduct violated

a clearly established constitutional right.” Pearson v. Callahan, 555

U.S. 223, 232 (2009). Where the law is clearly established, “a

caseworker is . . . entitled to qualified immunity if officers of

reasonable competence could disagree on the legality of the action at

issue in its particular factual context.” Southerland, 680 F.3d at 141

3 Specifically, plaintiffs contend that the District Court (1) failed to consider relevant

and admissible expert testimony; (2) incorrectly applied the standard for qualified

immunity; and (3) failed to construe the evidence in a light favorable to plaintiffs in

deciding disputed issues of fact. Appellant Br. at 1.

8 No. 12-4137-cv

(internal quotation marks omitted); accord Malley v. Briggs, 475 U.S.

335, 341 (1986).

Although this inquiry is known as the “objective

reasonableness test,” see Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.

1995), qualified immunity does not require application of a single

“reasonable person” standard as that concept is understood in the

law of torts.4 Rather, qualified immunity shields from liability state

officials tasked with choosing between interrupting parental custody

or risking injury to the child “provided that there is an objectively

reasonable basis for their decision, whichever way they make it.”

Tenenbaum v. Williams, 193 F.3d 581, 596 (2d Cir. 1999) (emphasis

added).

After reviewing the record de novo, we agree with the District

Court that the defendants are entitled to qualified immunity. In the

circumstances presented here, it was “objectively reasonable”—

within the meaning of the law of qualified immunity—for the

defendants to believe “that there was an immediate threat to the

safety of the Doe Children and a risk that the Doe Children would

be left bereft of care and supervision.” Doe, 2012 WL 4056723, at *5;

see also id. (“Given the record before the Court as to the history

4 The law of torts anticipates a uniform “standard to which the defendant’s conduct

must conform in order that he shall escape liability for harm done. . . .” Restatement

(Second) of Torts § 285 cmt. a. (1965). In the context of qualified immunity, however, a

test permitting of a single, objectively-reasonable standard of conduct is irreconcilable

with the Supreme Court’s recognition that an officer may be shielded from liability even

if his actions involve errors in judgment. See Pearson, 555 U.S. at 231 (“The protection of

qualified immunity applies regardless of whether the government official’s error is a

mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”

(internal quotation marks omitted)); Malley, 475 U.S. at 341 (“As the qualified immunity

defense has evolved, it provides ample protection to all but the plainly incompetent or

those who knowingly violate the law.”).

9 No. 12-4137-cv

between Jane Doe and Richard Roe, at a bare minimum, DCF officers

of reasonable competence could disagree on the legality of

defendants’ decision . . . .” (emphasis in original)).

At the time of removal, the defendants were aware of the

contentious history between Roe and Doe. Doe had been the subject

of multiple physical assaults at the hands of Roe, at least one of

which occurred while the children were in the home. DCF “Service

Agreements/Safety Plans” had been in place requiring Doe to

contact the police if Roe attempted to enter her home. The Superior

Court had issued a Protective Order prohibiting Roe from entering

Doe’s home, which remained in place. Once at Doe’s home, the

defendants learned that Roe had violated the Protective Order,

which Doe was either unwilling or unable to prevent. Because Roe

had fled the property, leaving his car, shirt, and shoes behind, he

was likely to return, but Whelan could not know when he would do

so. Given the history of domestic violence, with which Whelan was

familiar, and Roe’s presence in the home late at night, it was

objectively reasonable to believe that the children were in immediate

danger.5

The reasonableness of the officers’ conclusion is bolstered by

the subsequent findings of two judges of the Superior Court that the

children were in “immediate physical danger [from their]

surroundings and that continuation in their home [wa]s contrary to

their welfare.” Id. at *7 (internal quotation marks omitted). These

findings were based on the same information possessed by the

defendants at the time of removal and, in one case, followed two

days of evidentiary hearings on that information. Cf. Walczyk v. Rio,

496 F.3d 139, 155-56 (2d Cir. 2007) (noting the well-established rule

5 These events are undisputed.

10 No. 12-4137-cv

that “an arrest or search pursuant to a warrant issued by a neutral

magistrate is presumed reasonable”).

In support of their argument, plaintiffs refer us to Southerland

v. City of New York, which denied summary judgment based on

qualified immunity for an officer’s removal of children from their

home without a court order. See Southerland, 680 F.3d at 157-61. But

the instant case differs in two important ways. First, Southerland

involved significant factual disputes regarding, inter alia, what the

removing officer knew about the children’s history and what the

officer witnessed regarding the conditions of the home. See id. at 133-

36. Such disputes are not present here. Second, the Southerland Court

agreed with the District Court’s conclusion that the defendants had

not established the existence of exigent circumstances. See id. at 149.6

In contrast, the District Court in this case analyzed the availability of

qualified immunity under the clearly established “exigent

circumstances” inquiry and found, based on the undisputed facts as

set forth above, that a reasonable officer could conclude that the

children were in imminent danger. We agree.

Finally, the District Court’s failure to consider the Expert

Report of Evan Stark, Ph.D., (the “Stark Report”)7 does not render

6 The Court held that summary judgment was improper because it could not

“conclude as a matter of law on the current record that it would have been objectively

reasonable for [the state officer] to believe that his actions did not violate the Children’s

constitutional right not to be removed from their home barring exigent circumstances. . . .”

Southerland, 680 F.3d at 161 (emphasis added).

7 Dr. Stark holds, among other degrees, a Ph.D. in sociology, and is currently an

Associate Professor at the School of Public Affairs and Administration and Director of

the Masters in Public Health Program at Rutgers University-Newark, as well as the Chair

of the Department of Urban Health Administration at the University of Medicine and

Dentistry of New Jersey School of Public Health. JA93, 116;

http://urwebsrv.rutgers.edu/experts/index.php? a=display&f=expert&id=1289.

11 No. 12-4137-cv

inappropriate the entry of summary judgment. Even assuming that

Dr. Stark’s testimony was admissible at trial―a matter of some

doubt8―when contrasted with the views of the defendants and two

judges, all of whom concluded that there was an imminent threat of

harm to the children, the Stark Report confirms, at most, that officers

of reasonable competence could disagree on whether immediate

removal was necessary. Qualified immunity protects officers under

such circumstances.

In sum, notwithstanding the evidence plaintiffs claim the

District Court overlooked or misconstrued, we readily conclude that

the defendants are entitled to qualified immunity here.

CONCLUSION

To summarize, we hold that:

(1) A state official who takes a child into custody without

parental consent or court order is entitled to qualified

immunity if there was an objectively reasonable basis to

believe that there was an imminent threat of harm to the child.

(2) Based upon the evidence in the record—including the history

of domestic violence between Roe and Doe, the violation of

8 “A submission in opposition to (or in support of) summary judgment need be

considered only to the extent that it would have been admissible at trial.” Garcia v.

Hartford Police Dept., 706 F.3d 120, 127 (2d Cir. 2013); see also Nora Beverages, Inc. v. Perrier

Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (noting that we review summary-

judgment-related evidentiary rulings for “manifest error”). We are skeptical that many

of Dr. Stark’s conclusions would have been admissible, inasmuch as they appear to be

conclusory and overly general, see Major League Baseball Props., Inc. v. Salvino, Inc., 542

F.3d 290, 311 (2d Cir. 2008), although it would have been preferable for the District Court

to state explicitly its reasons for disregarding this report.

12 No. 12-4137-cv

the protective order, and the Superior Court’s finding that the

children were in immediate physical danger—the defendants’

decision to take the Doe Children into state custody was

objectively reasonable.

For the reasons stated above, we AFFIRM the September 14,

2012 judgment of the District Court granting summary judgment to

the defendants.