# Cecere v. City of New York > Court of Appeals for the Second Circuit · June 26, 1992 · 967 F.2d 826 URL: https://www.frixlaw.com/law-library/cases/9001689 ## Case - **Full name:** Gina CECERE v. The CITY OF NEW YORK William J. Grinker, Administrator, Human Resources Administration Brooke Trent, Deputy Commissioner, Special Services for Children, New York City Human Resources Administration Edna Davis, Director, Bronx Field Office, Special Services for Children, Tearance Rodgers, Caseworker, Special Services for Children Robert Puryear, Supervisor, Special Services for Children and Elda Brown, Robert Puryear, Supervisor, Special Services for Children - **Court:** Court of Appeals for the Second Circuit - **Decided:** June 26, 1992 - **Citations:** 967 F.2d 826; 1992 WL 144624 - **Precedential status:** Published - **Opinion:** Dissent by Lumbard - **Judges:** Lumbard, Newman, Winter - **Cited by:** 55 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9001689 ## How later opinions describe it (automated extraction) - stating that in 1986, “it was clearly established that a parent’s interest in the custody of a child was a constitutionally protected liberty interest subject to due process protection,” but holding that qualified immunity shields from liability child agency supervisor who hel… - holding that where a parent voluntarily left her child with a third party, and the third party later refused to return the child to the parent on the basis of State authority, the parent was deprived of her constitutionally protected interest in the custody of her child at the… - holding that when parent voluntarily leaves child with third party, and third party later refuses to return child to parent on basis of State authority, parent is deprived of constitutionally protected liberty interest in custody of her child at moment of refusal to return tha… - holding that emergency circumstances justified an immediate removal of the child from her parent, and that a four-day delay without a post-deprivation hearing was constitutionally permissible - holding that in 1986 it was well established that due process requires a hearing before a child can be taken from a parent’s custody unless the child is in imminent danger ## Opinion text LUMBARD, Circuit Judge, dissenting: Denial of a motion for summary judgment in a § 1983 action is appealable only to the extent that the appeal turns on a question of law. See Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985); Hurlman v. Rice, 927 F.2d 74 (2d Cir.1991); Mahoney v. Hankin, 844 F.2d 64 (2d Cir.1988). Because I cannot find as a matter of law that it was objectively reasonable for Puryear to believe that an emergency situation existed, I believe the appeal must be dismissed. Therefore I dissent. The majority suggests that both Kaufman and then Rodgers had sufficient information to believe that emergency circumstances existed, and that Puryear was justified in relying on Rodgers’ assessment. I do not find such information in the record. According to the majority, Kaufman and Rodgers had reason to believe: that Cecere suffered from drug and alcohol dependency, as well as psychiatric and emotional problems and suicidal tendencies; that she regularly left Kristen with relatives for lengthy periods of time; that on one occasion she appeared drunk at her grandmoth *831 er’s home and demanded to have Kristen returned to her; that she rarely took Kristen to school; and that she had no money or food with which to feed Kristen. There is no evidence that either Kaufman or Rodgers knew of these problems. Kaufman received an abuse report from a nurse practitioner at Montefiore Hospital. The report stated only that: “Mo[ther] has been abusing valium and alcohol for some time. In the past she would take child to Mat-Great-Great-Gr. Mo. for care when she knew she would be using drugs and alcohol. Now Mo. is refusing to allow anyone to care for child (child absent from daycare). It is believed she is using drugs and alcohol and is unable to care for the child.” The report contains no evidence of wrongdoing, merely the passive statement that “It is believed” Cecere cannot care for her daughter; this is nothing more than a warning of possible abuse which should be investigated. Accordingly, Kaufman commenced an investigation of the allegations and visited Cecere and Kristen. He conducted a brief visual inspection, and stated that he would send a caseworker to investigate further. However, he found no evidence of abuse and neglect, and later testified that “I looked at the child and didn’t see any bruises, didn’t see a child that was dehydrated or ill fed. [I] did not see a mistreated child ... If it was other than that we would have removed her.” Presumably Kaufman conveyed this finding to Rodgers, along with all the other information. Rodgers never visited Cecere or Kristen. There is no evidence Rodgers knew anything about Cecere and Kristen other than Brown’s broad allegations of neglect, the nurse’s report of possible abuse, and Kaufman’s actual findings of no abuse. I do not see how Rodgers was justified in finding that an emergency situation existed when his supervisor, who visited the child, had found to the contrary, and he himself had never met Kristen or Cecere. Puryear had even less reason to suspect neglect than Kaufman or Rodgers. In his affidavit, his deposition, and again in his brief Puryear points to only three items which led him to believe that an emergency situation existed: Rodgers’ conclusion that Kristeii’s welfare and safety would be endangered by returning her to her mother; Rodgers’ statement that Brown believed that plaintiff was abusing drugs; and Rodgers’ statement that Brown believed Cecere was unable to care for Kristen. These three factors surely cannot support invocation of the. “emergency circumstances” exception, as they contain no concrete evidence of actual abuse or imminent danger to the .child. Nor is it clear that Puryear was justified in relying upon Rodgers’ assessment. As the majority notes, a supervisor need not undertake de novo review or cross examine his subordinates “[ajbsent some indication ... that an investigation was inadequate.” According to the record, a caseworker investigation should include an evaluation of the home environment of the child, a determination of the risk to the child if she remains at home, and a determination of the nature, extent, and cause of any condition enumerated in the report. It is clear from his report, however, that Rodgers did not comply with standard investigation requirements. He did not visit the home of the child, nor did he tell Puryear of Kaufman’s visit. As far as Puryear knew, no one in the department had had any contact with the child. Furthermore, Rodgers identified no specific risk to Kristen should she remain at home, nor did he cite any evidence regarding the nature, extent, or cause of any alleged risks. In short, he provided no information other than that given to him by Brown. Reliance on the report of a caseworker who conducted an incomplete investigation, presented an insufficient report and never even saw the mother or the child cannot shield a supervisor from liability. Finally, the majority suggests that events would not have differed had Pur-year undertaken an independent investigation, as he probably would have accepted Rodgers’ recommendation anyway. Yet Kaufman, the only individual to investigate the case and visit Kristen and Cecere, specifically found no evidence of abuse or ne- *832 gleet. In fact, three days after the alleged emergency, Kaufman returned from vacation and found insufficient evidence for a custody hearing, let alone an emergency situation. I cannot see why Puryear would have come to a different conclusion had he undertaken an independent investigation or questioned Rodgers’ methods and findings. In short, the record does not support the conclusion that, as a matter of law, it was objectively reasonable for Puryear to believe Kristen was in immediate danger of harm. Therefore, the appeal should be dismissed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9001689. Public record. Not legal advice.