Petition — Catholic Home Bureau v. Doe

2@ 1 > < ree m her US

™ es AYE 1 }922

IN THE ALEXS ee

Supreme Court of the United States

OCTOBER TERM, 1983

CATHOLIC HOME BUREAU,

Petitioner,

-against-

ANNA DOE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT

OF APPEALS FOR THE SECOND CIRCUIT

FREDERICK J. MAGOVERN

120 Broadway

New York, New York 10271

(212) 962-1450

Attorney for Petitioner

PETER B. SKELOS

Of Counsel

een eens esr researc SD

THE QUESTIONS PRESENTED

(1) WHETHER THE DOCTRINE OF

THE LAW OF THE CASE WAS PROPERLY

INVOKED BY THE CIRCUIT COURT IN

REVERSING THE DISTRICT COURT'S

JUDGMENT FOR PETITIONER NOT WITH-

STANDING THE VERDICT IN VIEW OF

THE HOLDINGS OF YOUNGBERG v_ ROMEO

and PARRATT v_ TAYLOR?

(2) WHETHER THE TRIAL JUDGE

WAS CORRECT IN CONCLUDING THAT THE

TOTALITY EVIDENCE SO OVERWHELMINGLY

FAVORED PETITIONER THAT NO REASONABLE

AND FAIR MINDED JURY COULD FIND

PETITIONER DELIBERATELY INDIFFERENT

TO RESPONDENT'S WELL-BEING?

The parties to the proceeding are: plaintiff-

respondent, ANNA FARIA"DOE" and the defendant-

petitioner, CATHOLIC HOME BUREAU FOR DEPENDENT

CHILDREN. Plaintiff's other claims have either

been settled or dismissed. No other parties to

this proceeding are involved.

TABLE OF CONTENTS

page

THE QUESTIONS PRESENTED

FOR REVIEW ii

TABLE OF AUTHORITIES iii

OPINION BELOW iv

JURISDICTION Vv

STATUTES INVOLVED 4

STATEMENT OF THE CASE l

REASONS FOR GRANTING THE WRIT

POINT ONE , 6

POINT TWO ll

POINT THREE 22

CONCLUSION 28

INDEX TO APPENDIX

(i) OPINION OF THE SECOND CIRCUIT

(DOE II) dated 6/2/83 A-1

(ii) OPINION OF THE TRIAL COURT

(DOE II) dated 6/3/82 A-50

(iii) CHARGE OF THE TRIAL COURT

(DOE I) dated 5/27/80 A-72

(iv) DECISION OF TRIAL COURT A-100

(DOE I) dated 5/27/80

(v) CHARTS OF SERVICES A-110

iii

TABLE OF AUTHORITIES

CASES

Cone v W.Va.Pulp & Paper Co.,

330 U.S. 212 (1947)

Doe v N.Y.C. Dept. of Soc.

Ser. 649 F 2da134 (2nd Cir.

1981)

Estelle v Gamble,429 U.S.97

(1976)

Ingrahm v Wright, 430 U.S.

651 (1977)

Lehrman v Gulf Oil Corp.,

500 F 2d 659 (5th Cir.

1974)

Melong v Micronesian Claims

“Com. 643 F 2a 10 (D.C.Cir.

1980)

N.A.B.C. v_ GMC, 572 F 2d

953 (2nd Cir.1978)

Neely v Martin K E by

Const.Co., 386 U.S. 317

(1967

Parratt v Taylor,45l U.S.

527 (1981)

Paul v Davis, 424 U.S.693

(1976)

Read v Ulmer, 308 F 2d 915

(2nd Cir. 1962)

13, 14

ll

ll

13

12

7,16,17,

18,19,20

18

13

CASES

Tackett v Kidder, 616 F 2d +>

1050 (8th Cir. 1980)

Warton v Hirsch, 348 F 2d ll

906 (2nd Cir. 1965)

Youngberg v Romeo,102 S.Ct. 6,773%

2452 1583} 14,16,20

OPINION BELOW

The opinion of the Circuit Court

of Appealswhich reversed the judg-

ment of the District Court and

reinstated the jury verdict for

respondent is as yet not officially

reported having been decided on

June 2, 1983. The opinion is set

forth in the appendix hereto.

JURISDICTION

The Court of Appeals for the

Second Circuit reversed and reinstated

judgment for respondent on June 2,1983.

This Petition is timely filea within

sixty (60) days of the date of the

Court of Appeals reversal. Jurisdiction

is invoked pursuant to 28 U.S.C.§1257.

STATUTES INVOLVED

U.S. CONSTITUTION, 14th AMENDMENT

42 U.S.C. §1983

STATEMENT OF THE CASE

Respondent commenced this civil

rights action against Petitioner, The

Catholic Home Bureau for Dependent

Children, seeking money damages for the

deprivation of her constitutional right

to be free from harm while she lived in

one of petitioner's foster homes. Res-

pondent lived from 1965 to August 1977

in the foster home of Mr. & Mrs. Frank

Senerchia. The foster father, a former

New York City policeman lived in a

residential community on Staten Island

with his wife and four natural children.

Respondent commenced this lawsuit

in 1979 alleging that from 1971 to 1977

the foster father regularly abused and

mistreated her. Respondent contends

that the petitioner failed to

adequately investigate and discover the

foster father's violent propensities and

to insure respondent's freedom from harm

(Complaint par.45).

All was well in the foster home

until 1971 when the abuse began. Res-

pondent never complained to anyone of

any mistreatment or even of dissatis-

faction with the foster home before

August 1977 at which time she was imm-

ediately removed. Moreover, respond-

ent not only told petitioner of her

fervent wish to be adopted she even

admitted to all agency professionals

that she had been sexually active with

peers at her public school. Thus, not

only was petitioner misinformed it

was intentionally mislead by respondent.

At the first trial on May 27,1980

the District Court (Pollack,J.) ona

reserved decision granted petitioner's

motion to dismiss but permitted the case

to go to the jury noting:

"The evidence was in-

adequate as a matter of

law of a constitution vio-

lation. This Court is not

in the business of administ-

ering state created duties

or obligations. This case

falls hopelessly short of

constituting deliberate in-

difference to the supervision,

living conditions, welfare,

treatment, or conduct of the

foster parents.”

ee: 2 8 8

In this Court's view, no

reasonable person could find,

in the light of the evidence

adduced at trial, that a

federal case under the Civil

Rights Act was made out again-

st The Catholic Home Bureau.

Any verdict for the plaintiff

could be reached only through

passion or prejudice and

would have to be set aside as

unreasonable."

(A= 75)

The jury verdict for petitioner was sub-

sequently set aside on appeal and the

case remanded for a new trial because

of erroneous jury instructions. DOE v

N.Y.C. DEPT. OF SOC. SERVICES, 649 F.2d

134 (2nd Cir.1981) (hereinafter "DOE I").

The Court found error in the jury

instruction holding that the jury should

have been instructed

"as to the occasionally

subtle yet pivotal dis-

tinction between ordinary

negligence and grossly

negligent or reckless

conduct informing them

that only the latter types

of behavior could support

Plaintiff's claims."

Doe I at 144

oe a. wee

"Defendants maybe held

liable under §1983 if they,

or in the case of an agency,

its top supervisory personnel,

exhibited deliberate indiffer-

ence to a known risk, or a

specific duty, and their

failure to perform the duty

or act to ameliorate the

risk or injury was a pro-

ximate cause of plaintiff's

deprivation of rights under

the Constitution.”

Doe I at 145

After the jury found for respondent

at the second trial and assessed damages

at $225,000.00 dollars, the District

Court (Brieant,J.) entered judgment in

favor of petitioner notwithstanding the

verdict.

"The Court finds and

concludes that considering

these facts particularly and

all the other facts establish-

ed by the totality of the

evidence at trial viewed in

the light most favorable to

the plaintiff, and reslolving

all issues of credibility in

her favor the evidence could

not possibly support a verdict

in favor of the plaintiff on

liability as a federal civil

rights action within the rubic

of the Court of Appeals opinion

in this very case."

(Emphasis added)

(A= 62)

On the second appeal (hereinafter

"DOE II") the Circuit Court reversed and

reinstated the jury verdict upon the

grounds that there was no basis for

the District Court to enter a judgment

notwithstanding the jury verdict and

that it was the law of the case that a

jury question existed.

POINT ONE

THIS CASE PRESENTS QUESTIONS

OF GREAT PUBLIC IMPORTANCE.

This case presents legal issues

of far reaching effect on foster care.

Here, as in Romeo v Youngberg, 102 S.Ct.

2452 (1982) the Court is called to review

a vexing sociological problem. In New

York alone there are some 50,000 child-

ren in foster care living in a variety

of settings ranging from institutions

to foster homes. . New York has

recognized that foster home care is

the best available alternative to a

natural home where the natural parents

cannot or will not provide the "posit-

ive nurturing family relationship" and

"normal family life in a permanent home".

N.Y. Soc. Serv. Law §384=-b (1) (b),1(a)

(i).

1. See note 13, Smith v. Offer,

431 U.S.816 (1978 )

The holding of the Circuit Court

refused to extend to the judgment of

social work professionals the same pre-

sumption of validity that mental health

care professionals are entitled to.

Romeo at 2462. It has thus relegated

social worker professionals and foster

care to a position of secondary import-

ance to institutional mental health care.

It also represents a situation

where the Circuit Court has ignored the

express holdings of Parratt v Taylor,

451 U.S. 527 (1981) and Youngberg v

Romeo, U.S. 102 S.Ct. 2452 (1982). In

so doing, the Circuit Court has notwith-

standing this Court's repeated admoni-

tions against creating constitutional

torts, done exactly that. One obvious

result of this holding will, of course,

be increased federal litigation. Under

the Second Circuit's holding, the

federal courts will become repositories

for most, if not all, personal injury

claims occuring to those foster care

children.

More important is the deleterious

effect of the Second Circuit's holding

on foster care agencies to place the

children in institutional setting

where the judgments of their profess-

ionals will be entitled to presumptive

validity. Thus, the Second Circuit's

holding may well signal a return to the

foster care of a half century ago of

orphanages since the exposure and risk

of a federal lawsuit is increased if

foster home care is chosen. Such a set

back in child welfare cannot be per-

mitted to stand. Nor can child wel-

fare tolerate the loss of social

workers and other foster care profess-

ionals who will eschew a career in

foster care for the greater safety

of hospital social work or institutional

work.

There is no rational basis to

accord the judgment of a psychologist

in a mental institution presumptive

validity and deny that presumption of

validity to his judgement concerning

the treatment of a child in foster home

care. Yet, this is precisely the res-

ult of the Circuit holding. Clearly,

Romeo requires that the judgment of the

foster care professionals be entitled

the same presumption of validity as

mental health care professionals.

This Court should intervene at

this point to vitiate the fear and

confusion which will certainly result

from the holding of the Circuit Court.

Accordingly, and because this case in-

volves issues of great public importance

and pernicious implications to the fos-

ter care programs, not only of New York

but for other states as well, the

10

Court should grant review of this case.

ll

POINT TWO

THE CIRCUIT COURT REVERSAL

OF JUDGMENT FOR PETITIONER

NOTWITHSTANDING THE VERDICT

WAS A CLEARLY ERRONEOUS

APPLICATION OF THE DOCTRINE

OF THE LAW OF THE CASE.

Contrary to the holding of the Cir-

cuit Court, the doctrine of the law of

the case was never intended as a rigid

rule. It is only addressed to the

Court's good sense. Warton v Hirsch,348

F.2d 906 (2nd Cir.1965). It does not

preclude second review if substantial

justice warrants it. Lehrman v Gulf Oil

Corp.,509) F.2d 659 (5th Cir.1974). And,

where as here there is new authority

which alters the applicable standards, or

the evidence at the second trial is sub-

stantially different, or the earlier

decision is clearly erroneous and works a

manifest injustice, then it is clearly

erroneous to invoke the doctrine of the

law of the case. Melong v Micronesian

12

Claims Com.,643 F. 2a 10 (D.C.Cir.1980}.

Yet, despite the presence of all of the

above, the Circuit Court mistakenly im-

posed the doctrine. In so doing they

resurrected what amounts to dicta inDOE

I and once again emasculated the findings

of the trial judge "whose vantage point

is superior." Tackett v Kidder, 616 F.2d

1050 (8th Cir. 1980).

"Granted, a judgment n.o.v.

at times seem harsh, however,

we agree with the trial judge

whose presence at the trial

afforded him a much better

vantage point from which to

evaluate the evidence not

from a transcript alone, but

from seeing and observing the

witnesses themselves." 2

Tackett at 1053

We do not disagree with the pres-

scribed test to determine if judgment n.

O.V. iS proper. However, the Circuit

Court may not as it has done here over-

2. See also, Neely v Martin K.

Eby Const.Co,386 U.S.317 (1967);

Cone v W. Va. Pulp & Paper

To., 550 U.S. 212 (1947).

13

look uncontroverted evidence unfavorable

to the non-movant. N.A.B.C.v G.M.C.,572

F.2d 953, 956 (2nd Cir.1978). Likewise,

the inferences drawn must be within the

range of reasonable probability and not

at war with undisputed facts (Read v

Ulmer, 308 F.2d 915 (2nd Cir. 1962).

YOUNGBERG v ROMEO and PARRATT v_ TAYLOR

CHANGED THE APPLICABLE LEGAL STANDARDS.

In DOE I the Circuit Court

critically faulted the trial judge's

(Pollack,J.) jury instruction for

failure to explain the mental state of

"deliberate indifference" which it held

was necessary for a finding of petition-

er's liability. DOE I at 141. Quite

obviously, the Circuit Court was en-

deavoring to extend Estelle v Gamble,

429 U.S. 97 (1976), an 8th Amendment

case involving a warden's supervision of

a penal institution, to the 14th Amend-

1 4

ment and the non-penal circumstances of

foster care. Romeo clearly destroys both

the Circuit Court's reliance on Estelle

in DOE I and the basis for its reversal

of the jury verdict for petitioner in

DOE l.

In DOE II the Circuit Court erron-

eously adhered to its earlier reasoning

in defiance of both the specific holding

and the basic reasoning of Youngberg v

Romeo, 102 S.Ct. 2452 (1982). Contrary

to the Circuit Court in DOE II, Romeo

dramatically negates its holdings in DOE

I in several important respects. First,

in Romeo this Court squarely rejected

extending the "deliberate indifference”

standard of Estelle and the 8th Amend-

ment to non-penal settings. Romeo at 63.

Second, Romeo mandates that the judg-

ments of petitioner's professionals(Drs.

Lewis, Piana, social workers, Crowe,

Collechia, Dellaverson,Gambino,etc.)

2. 3

be accorded presumptive validity, a point

clearly missed by the Circuit Court in

DOE II.

"For these reasons, the

decision if made by a profess-

ional, is presumptively valid,

liability may be imposed only

when the decision by the pro-

fessional is such a substant-

ial departure from accepted

professional judgment, practice

Or standards as to demonstrate

that the person responsible

acutally did not base the

decision on such a judgment.”

Romeo at 62

Ti the judgment of a professional

at a mental institution is entitl-

ed to presumptive validity then surely

the judgment of the foster care profess-

ionals (i.e. agency psychologists, psy-

chiatrists and social workers whose

responsibilities are certainly no less

burdensome than those institutional

compatriots and whose direct control is,

of necessity, much less) is no less des-

erving of presumptive validity imposed

by Romeo. Third, the Circuit Court

16

theory that the standard in DOE I was

higher than the standard in Romeo simply

misses the point. The standard it insis-

ted be applied (i.e."deliberate indiff-

erence"to a non-penal, non-8th Amendment

case) in DOE I was held to be clearly

erroneous in Romeo outside the penal

setting. Thus, not only was it clearly

erroneous to apply the doctrine of the

law of the case, petitioner was entitled

on the second trial to a jury charge

that the decisions of its professionals

are presumptively valid.

Of equal, if not greater, signifi-

cance was this Court's holding in_Parratt

v Taylor, 451 U.S. 527 (1981), which the

Circuit Court relegated to a footnote.

DOE II at Slip op 29. Parratt in and of

itself defeats invocation of the doctrine

of the law of the case. The Circuit

Court's failure to discern the import of

Parratt to civil rigkts actions such as

a

this was clearly erroneous. The Cir-

cuit Court's circumvention of Parratt

on the ground that it concerned a 14th

Amendment property right as opposed to

Respondent's 14th Amendment liberty

right is a distinction without a dif-

ference.

In Parratt, this Court held that

the 14th Amendment is not a font of tort

law to be superimposed upon whatever

systems may already be administred by

the States. To circumvent Parratt

because it factually concerned a depriva-

tion of property is to miss the clear

holding of the Court. Parratt has a

much broader significance and particular

application to this caSe.

"Although he has been

deprived of property under color

of state law, the deprivation

occured as a result of the

authorized failure of agents of

the state procedure..... The State

provides a remedy to persons who

believe they nave suffered a

U

tortious loss at the hands of

18

the State." Parratt at 1717

The direct application of Parratt to the

constitutional right at issue in DOE is

made clear beyond peradventure by re-

liance in Parratt on Ingraham v Wright,

430 U.S. 651 (1977), and Paul v Davis ,

424 U.S.693 (1976). Both cases involv-

ed 14th Amendment liberty rights. Thus,

when this Court remarked that:

"Application of the

principles recited above to

this case leads me to conclude

the respondent had not alleged

a violation of Due Process

Clause of the Fourteenth Amend-

ment. Although he has been

deprived of property the de-

privation did not occur as a

result of some established

state procedure. Indeed the

deprivation occurred as a re-

sult of the unauthorized failure

of agents of the State to follow

established state procedure...

(emphasis added)

it might well have been addressing the

deprivation alleged herein (1.e. petit@-

ioner's failure to comply with state

reporting requirements regarding sus-

pected abuse and supervisory reguire-

19

ments).

In Parratt, there was no claim of

an intentional deprivation of the con-

stitutionally guaranteed 14th Amendment

right or that the state remedy was in-

adequate or unavailing. Likewise, here

respondent does not charge an intentional

deprivation but rather petitioner's fail-

ure to prevent the injury as a result of

alleged deliberate indifference to

respondent's well-being. It is reveal-

ing to note that respondent does not

contend that the state's rules, regula-

tions and laws are inadequate, only that

the petitioner neglected to comply with

those reguirements. And, finally,

respondent does not complain of any in-

adequacy of the state remedies available

to her (and which she is simultaneously

pursuing) for her injuries. In short,

respondent seeks to create a constitut-

ional tort.

20

Unfortunately, the Circuit

Court's holding embracing as it does

respondent's illogic would make every

wrong committed by a foster care employ-

ee congnizable under §1983. A result

that Parratt eschewed.

"To accept respondent's

argument .....would almost

necessarily result in turning

every alleged injury which may

have been inflicted by a state

official acting under "color

of law" into a violation of

the 14th Amendment cognizable

under §1983. It is hard to

perceive any logical stopping

place to such a line of reason-

ing. Presumably, under this

rationale any party who is

involved in nothing more than

an automobile accident with a

state official [or foster

parent] could allege a con-

stitutional violation under

§1983....We do not think that

the drafters of the 14th Amend-

ment intended the Amendment to

play such a role in our society."

Parratt at 538

Thus, it was clearly erroneous for

the Circuit Court to reverse the judgment

for petitioner notwithstanding the ver-

dict by holding that Romeo and Parratt

21

did not alter the earlier legal standard

of DOE I.

22

POINT THREE

THE CIRCUIT COURT'S REVERSAL

WAS CLEARLY ERRONEOUS SINCE

THE EVIDENCE WAS OVERWHELM-

ING THAT PETITIONER WAS

NOT DELIBERATELY INDIFFERENT

TO THE WELL-BEING OF THE

RESPONDENT

No fair minded and reasonable

person could conclude on the evidence

presented that the petitioner displayed

a mental state of deliberate indifference

to respondent's welfare. Concededly,

petitioner did not discover the alleged

abuse. It would never have been dis-

covered but for Mrs. Senerchia finding

respondent and Mr. Senerchia in a "con

prising" position. If the foster mother

who was present in the home twenty-four

hours a day seven days a week was un-

ware of the abuse it certainly cannot

be realistically expected that petitioner

whose workers visits are announced in

advance ,would discover such abuse by

reason of more freguent home visits.

23

In fact, the home visits by Ms. Della-

verson every three weeks from June 1975

to May 1977 established just the contra-

ry. She concluded "no evidence of sex-

ual involvement."

Of course, the evidence unequivoca-

lly demonstrated not indifference to

respondent's welfare but intense con-

cern and interest. To permit the

Circuit Court holding,that the extra-

ordinary interest demonstrated by

petitioner during time in issue is

insufficient to defeat a charge of

deliberate indifference,to stand would

work a manifest injustice.

By way of example, we cite the

actions of petitioner during the

critical year 1975 to show the interest

in respondent's well-being that petit-

ioner manifested and which is uncon-

tradicted:

"-CHB's social worker inter-

24

viewed plaintiff at foster

home (3/19, 5/12, 6/12, 7/21,

8/11, 8/27, 9/15, 10/22, 11/19,

12/10);

-CHB social worker in telephone

contact with foster parents (1/17,

1/10, 2/4. 2/10, 2/14, 2/25,

2/28 tae), 3/35 3 Te. a2 ake: Of S9%

3/20 (2x) 4/9, 4/11, 4/16, 4/17,

5/7, S/9.° S/24, 6/35)

-plaintiff interviewed and

examined by Dr. Lewis (1/9,

1/24,); by Dr. de Alvarado

(3/19);

-plaintiff psychiatrically

examined by BCG psychiatrist,

Dr. John Davis, M.D. (5/17);

-foster father seen by Dr.

Lewis (1/9);

-foster parents both seen by

Dr. John Davis, (5/17);

-plaintiff hearing tested at

St. Vincent's as per CHB

arrangements (3/12, 3/24);

her speech evaluated (4/3

[Ex. j & K];

-CHB social worker in telephone

Or person contact with New York

City Board of Educations's

Bureau of Child Guidance re-

garding school placement (1/10,

2/18, 2/21, 4/23, 4/24, 5/14,

5/15, Sfais 6/333

-CHB case conference regarding

25

plaintiff were held (1/9,

2/27, 3/19, 4/10);

-plaintiff was the subject of

many memorandums (2/17, 2/20,

3/13. 3/21, 3/24, 4/10, 4/11,

4/17, 4/25, 4/28, 5/12, 6/16) ;

-CHB social worker in contact

with St. Vincent's regarding

plaintiff (2/24-letter, 2/25-

telephone, 3/3, 4/23, 4/30

telephone) ;

-plaintiff physically examined

by Dr. Salome (9/23,); her

eyes tested (6/21);

-CHB social worker in contact

with plaintiff's school (2/19,

4/15, 4/16); with truant

officer (4/14);

-CHB social worker arranged

for summer school at Staten

Island Academy. a- 110

No reasonable and fairminded per-

son could conclude in view of the fore-

going that petitioner was concerned about

respondent's hearing but cared not at

all about whether she was being mis-

treated. Or, put another way no

reasonable person could conclude that

you can be concerned about a foster

26

child's eye glass prescription and at

the same time be indifferent to whether

the foster father is poking her in the

eyes. Quite obviously the Circuit

Court faulted the petitioner for failing

to fulfill all of its duties.But in no

way can such failure be characterized as

the result of deliberate indifference

to respondent's well-being. To do

as the Circuit Court did iS to twist

the facts to conform to its erroneous

theory of the case.

We believe that the only proper

fair and reasonable conclusion that

could be drawn from the evidence was

that of the District Court trial judge.

"The Court finds and

concludes that considering

these facts particularly and

all the other facts established

by the totality of the evidence

at_ trial, viewed in the light

most favorable to the plaintiff,

and resolving all issues of

credibility in her favor the

evidence could not possibily

support a verdict in favor of

27

the plaintiff on liability

as a federal civil rights action

within the rubic of the Court

of Appeals opinion in this

very case."

(Emphasis added)

The District Court found "beyond

doubt" that the evidence was not suffi-

cient to support a finding that Catholic

Home Bureau was deliberately indifferent

and that there was no basis upon which

a finding of deliberate indifference

could be found by jurors acting reason-

ably. (A-66)

Judge Brieant adhered to his

determination on re-argument and noted:

"It's [i.e. the Court's]

ruling is based on what it heard

and saw and its own findings

and conclusions. These are

believed to be just and correct

following re-argument."

(Emphasis added)

We believe that the decision of the tri-

al judge was perfectly correct. The

evidence was overwhelming that petition-

er was always concerned for respondent's

28

well being and never deliberately indiff-

erent to her constitutional right to be

free from harm. Accordingly, it was

Clearly erroneous for the Circuit Court

to reserve the trial court's judgment

for petitioner notwithstanding the ver-

dict.

CONCLUSION

For the foregoing reasons, pet-

itioner respectfully requests that a

writ of certiorari issue to review the

judgment of the United States Court of

Appeals for the Second Circuit.

Respectfully submitted, this

3lst day of July, 1983:

FREDERICK J. MAGOVERN

120 Broadway

New York, New York

10271

Attorney for Petitioner

Peter B. Skelos

of counsel

APPENDIX

Before:

Oakes, Kearse, and Sloviter,*

Circuit Judges.

Appellant seeks reversal of

judgment notwithstanding the verdict of

the United States District Court for the

Southern District of New York, Charles

L. Brieant, Judge, in favor of defendant

Catholic Home Bureau on a claim under

42 U.S.C. § 1983 (Supp. IV 1980) and

reinstatement of the jury verduct for

appellant awarding $225,000 damages.

Appellant claims she was entitled to

jury's verdict because the previous

appellate decision in this case, Doe v.

New York City Department of Social

Services, 649 F.2d 134 (2d Cir. 1981),

is the law of the case that a jury

*Of the United States Court of

Appeals for the Third Circuit, sitting

by designation.

question existed and because there was

no basis for entering a judgment not-

withstanding the verdict. Judgment is

reversed on both grounds.

*

CAROLYN KUBITSCHEK, Edward N.

Simon, New York, NY,

David J. Lansner, Lansner

& Wendt, New York, NY,

Louise Gruner Gans, New

York, NY for Appellant.

FREDERICK J. MAGOVERN, New

York, NY for Appellee.

*

Sloviter, Circuit Judge:

Appellant Anna Doe's claim

under 42 U.S.C. § 1983 (Supp. IV 1980)

against the Catholic Home Bureau ("the

Bureau") comes before this court for the

second time. On the first appeal, we

reversed the judgment entered on the

jury verdict for the defendant Bureau

and remanded the case for a new trial

because the jury instructions were

misleading and because certain eviden-

tiary rulings were erroneous. Doe v.

New York City Department of Social

Services, 649 F.2d 134 (2d Cir. 1981)

(Doe I). After the jury found for

plaintiff at the new trial and assessed

damages at $225,000, Judge Brieant, the

trial judge, United States District

Court for the Southern District of New

York, entered judgment notwithstanding

the verdict in favor of the defendant

Bureau. The judge rejected plaintiff's

argument that she was entitled to the

jury verdict under this court's earlier

decision. Instead, the trial court held

the evidence was so overwhelming that no

reasonable jury could find the Bureau

acted with deliberate indifference, the

standard used to establish liability

under the section 1983 claim at issue.

Plaintiff appeals the entry of judgment

in favor of the Bureau; we reverse and

remand for reinstatement of the jury

verdict.

I.

BACKGROUND

A.

Facts

Because this case reaches us

on appeal from a judgment notwithstanding

the jury's verdict for the plaintiff, we

must view the evidence in the light most

favorable to the plaintiff who "must be

given the benefit of all reasonable

inferences which may be drawn in [her]

favor from [the] evidence." Simblest v.

Maynard, 427 F.2d 1, 4 (2d Cir. 1970).

Anna Doe, born in 1961, was

two years old when she was placed in

foster care along with her sister. The

New York City Commissioner of Welfare,

their legal custodian, arranged for

defendant Catholic Home Bureau to

Supervise their care beginning January

5, 1964. The Bureau placed the girls

with Mr. and Mrs. Senerchia, having

previously investigated and certified

them as suitable for foster placements.

The Bureau placed two additional foster

children with them in 1965.

The record contains evidence

that Anna was regularly and frequently

physically and sexually abused by Mr.

Senerchia, her foster father, starting

in 1971 when she was about ten or eleven

years old. The physical abuse consisted,

inter alia, of beating her over her

entire body with his hands and with a

belt, throwing her down the stairs and

even once cutting her with a hunting

knife. Beginning at the same time when

Anna was ten or eleven, and continuing

for more than six years, Mr. Senerchia

forced Anna to have intercourse and oral

sexual relations with him. He had

threatened Anna she would be institution-

alized if she told anyone of his actions.

The Bureau took decisive action

only after Mrs. Senerchia reported to

the Bureau in August 1977 that she had

recently discovered Mr. Senerchia and

Anna in bed together. On receipt of

this information, the Bureau barred Mr.

Senerchia from returning home and the

Bureau reported the abuse to the appro-

priate city authority, the Confidential

Investigation Unit. Shortly thereafter,

one of Anna's foster sisters reported

that she had also been physically and

sexually abused by Mr. Senerchia. The

Confidential Investigation Unit corrob-

orated the occurrence of abuse of Anna.

It is undisputed that prior to August

1977, the Bureau did not report any

Suspected abuse either to the New York

City Department of Social Services or to

the Confidential Unit.

In this law suit, filed in

April 1979, Anna claims that the Catholic

Home Bureau violated her constitutional

right to be kept free from harm. She

alleges that the Bureau's failure to

supervise her placement adequately and

to report her situation to the New York

City Department of Social Services as a

case of suspected child abuse led to

continuation of her mistreatment.

Plaintiff contends that the Bureau had

violated specific duties imposed by New

York law; that it had enough information

beginning at least in early 1975 to give

it actual or constructive notice of the

abuse to which Anna was being subjected;

and that the Bureau was grossly negligent

and deliberately indifferent to Anna's

physical well-being in failing to act,

resulting in Anna's continued abuse.

To support the jury's verdict,

which depended on a finding of deliberate

indifference to plaintiff's needs,

plaintiff relies primarily on events

beginning in early 1975. The case

records evince some earlier concerns.

There are notations about Mr. Senerchia's

unusual dominance within the family,

the difficulty of dealing with him, the

suspicion that Mr. Senerchia had severe

emotional problems, the difficulties

which Mr. and Mrs. Senerchia placed in

the path of workers seeking to see Anna

alone, and the Senerchias' practice of

often answering questions directed to

Anna. Nonetheless the early case

records were generally positive about

the family environment.

However, in January 1975, when

Anna was in the eighth grade, specific

information of a problem was communicated

to Sister Una McCormack, the Bureau's

executive head. A priest told her that

Mr. Senerchia had taken Anna out of her

school allegedly because "Anna was

sexually acting out in school” with

other children, and was attempting to

get her into parochial school. Sister

Una directed that Anna be seen by

Dr. Lewis, a Bureau psychologist.

Ms. Crowe, the supervisor of the Staten

Island office which was handling Anna's

case, contacted Mr. Senerchia regarding

this appointment. Mr. Senerchia repeated

the allegation of frequent sexual

activity to Ms. Crowe, and stated that

Anna, upon his prodding, had confessed

to sexual involvement with other school

children including actual intercourse

occurring since the first grade. These

activities allegedly occurred during

school hours in empty classrooms,

hallways, the gym and the cafeteria.

The case records of conversations of

Bureau personnel with Mr. Senerchia note

that he seemed eager to give details of

A-10

this sexual activity and that he seemed

to derive some satisfaction from recount-

ing the matter. Mr. Senerchia insisted

that his wife not be told and that the

Bureau not approach the school.

Ms. Moroney, Ms. Crowe's

Supervisor, visited the Bureau's branch

office, read the case record and dis-

cussed the situation. Ms. Moroney took

the case record containing background

information on the Senerchia family

to Dr. Lewis. Dr. Lewis was informed

that Anna had been "engaging in sexual

activity with classmates." Dr. Lewis,

however, did not read the case

record before interviewing Anna and

Mr. Senerchia. During this interview on

January 9, 1975, Anna admitted to

"sexual play" with other children and

evinced anxiety about the repercussions

the episode might have on the possibility

of her adoption by the Senerchias.

A-11

Dr. Lewis' impression was that Anna had

probably been engaging in some "sex

play" and concluded, after spending

15 minutes with Mr. Senerchia, that he

seemed to be a concerned and warm

parent. She recommended that Anna be

transferred to a more appropriate

educational setting, but that the foster

home placement be maintained. Dr. Lewis

and the Bureau's personnel agreed,

after conferring, that Anna should not

return to the school she had been

attending. Significantly, on learning

of Mr. Senerchia's allegation, no one

from the Bureau contacted the school

where Anna had allegedly engaged in

these active and frequent sexual

activities either to corroborate

Mr. Senerchia's story or to see what

light the school authorities could

shed.

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Shortly thereafter, Dr. Lewis

made an up-to-date psychological evalua-

tion of Anna to measure her intelligence

for purposes of educational placement,

since the Bureau was seeking to have

Anna placed in a special class for the

mentally handicapped. A representative

of the City's Bureau of Child Guidance

told Anna's caseworker that Anna's

test results were above the ceiling for

placement in a mentally handicapped

class. The caseworker informed that

representative at the City's Bureau that

Anna's foster father had removed her

from school, but did not give the

reason. The Catholic Bureau then

considered trying to place Anna in a

special class for the emotionally

handicapped. Since such a placement

required a psychiatric evaluation in

addition to the psychological evaluation

performed by Dr. Lewis, Anna was

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scheduled to see Dr. de Alvarado, an

agency psychiatrist, on March 5, 1975,

and Mr. and Mrs. Senerchia were requested

to attend. A staff conference on Anna's

case was held in late February at Dr. de

Alvarado's request. The March 5, 1975

appointment was cancelled because

Mr. Senerchia had been hospitalized,

but Dr. de Alvarado saw Anna alone on

March 19th.

Dr. de Alvarado testified

that she had carefully read the case

history and felt something did not add

up. Upon questioning Anna, she did not

believe the details of Anna's sexual

involvement with other school children.

She asked Anna directly if she was

sexually involved with Mr. Senerchia.

Although Anna did not answer, Dr. de

Alvarado knew that a great majority of

abused children deny occurrence of such

abuse. Dr. de Alvarado reached the

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judgment that sexual abuse was occurring,

which she based upon her reading of the

case history and her observation of Anna

during the interview, including Anna's

tearful reaction to the question about

sexual involvement with her foster

father. After the interview, the

psychiatrist called a conference that

same day with Ms. Crowe and others and,

as Dr. de Alvarado testified, "very

explicitly said to them that I thought

there was sexual abuse in that home and

that she [Anna] should be removed so

that they could explore" the situation.

Dr. de Alvarado testified that she

"thought it was a crisis situation."

Her report recommended removal from the

foster home and placement in a residen-

tial structured situation.

Although Dr. de Alvarado had

alerted the Bureau personnel to her

views on March 19, 1975, no immediate

A-15

action was taken by them. Dr. de

Alvarado was requested by the Bureau to

delete references to any suspected

sexual relationship from her written

report, apparently so that the report

could be used by those outside the

Bureau for school placement purposes,

and she did so. An administrative

review in the Bureau was not held until

April 10, 1975, when Ms. Maroney,

Mr. Galano, Special Services Coordinator,

Ms. Crowe, and Ms. Klages, Anna's

Caseworker, met and agreed, as set forth

in the case records, that "a continuing

effort should be made to get Anna into a

school" and that "Mr. Senerchia's

involvement with Anna should be further

investigated." Nonetheless, the Bureau

undertook no such investigation on its

own, nor did it request an investigation

by others. No one from the Bureau

reported suspected abuse to the

A-16

Confidential Investigation Unit, although

Only the month before there had been a

memorandum to child care agencies from

the City emphasizing that "[i]t is

imperative that diligent reporting" of

abuse be made. Doe I, 649 F.2d at 148

n.13. Furthermore, no home visits were

made between November 12, 1974 and May

12, 1975, and Anna, who had previously

been classified as having borderline

intelligence, remained out of school for

the semester.

The truant office from Anna's

school became concerned about Anna's

absence. After learning Mr. Senerchia's

asserted reason for removing Anna from

school, the truant officer telephoned

the Bureau in April 1975 and told the

caseworker that "this [Mr. Senerchia's

allegations] could not be occurring"

because the school "is not .. . hap-

hazardly run," Anna could not have been

A-17

cutting classes, and there were no empty

storerooms or classrooms where the

alleged activity could have taken place.

The school's principal called the Bureau

shortly thereafter to report he had

investigated and confirmed that Anna had

not been cutting class. When the

caseworker finally saw Mr. Senerchia on

May 12, 1975 and questioned him about

his allegations, Mr. Senerchia gave a

version which the caseworker noted

"differ({ed] greatly from the version

Mr. S. originally gave."

In May 1975, Anna was examined

concerning her school placement by

Dr. Davis, a consultant psychiatrist for

the City's Board of Child Guidance.

The Bureau did not inform Dr. Davis

of Dr. de Alvarado's assessment of

Mr. Senerchia's involvement with Anna.

Dr. Davis advised against a residential

Placement but felt Anna needed a special

A-18

slow class. When Anna finally resumed

school in the fall, she attended a

parochial school rather than the special

classes for which the Bureau had been

waiting the prior semester,

On June 6, 1975, the Bureau

submitted its annual report to the City.

It did not mention Mr. Senerchia's

withdrawal of Anna from school, Dr. de

Alvarado's suspicions and recommendation,

or the allegations of Anna's sexual

activity in school, although these

events had occurred in the year covered

by the report. Nor did the Bureau probe

further based on the information at

hand. Instead, the Bureau transferred

the case to a different office supervisor

(Ms. Gambino) and caseworker (Ms.

Dellaverson) in the summer of 1975

because of "the complications surrounding

[the] case" and "in an effort to move

away from the historical relationship

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(or lack of) that exists between [the

Senerchia family) and unit staff."

Ms. Dellaverson was never instructed to

investigate the possible sexual involve-

ment of Anna with her foster father.

She testified that she visited the

Senerchia home every three weeks or so,

The case records do not reflect any

visitations between September 14, 1976

and April 1, 1977, another critical

period.

In September 1976,

Mr. Senerchia informed the Bureau

that Anna's foster sister had been

"sexually acting out" in a fashion

Similar to his reports about Anna. He

removed the foster sister from school.

Ms. Dellaverson told her supervisor,

Ms. Gambino, that she felt this was a

"repetition syndrome" and Ms. Gambino

"felt there was something abnormal

here." Nonetheless, this new and

A-20

troubling development did not evoke any

suspected child abuse report by the

Bureau.

Because the Senerchias were

Planning to adopt Anna and her sister,

Ms. Dellaverson and Ms. Gambino decided

that a psychiatrist should interview the

Senerchias, Anna, and her sister before

proceeding with the adoption. The

Senerchias initially resisted a psychia-

tric visit, but were finally seen in

March 1977 by a Catholic Bureau psychia-

trist, Dr. Piana. Ms. Dellaverson

testified that she did not think she

told Dr. Piana about Dr. de Alvarado's

Suspicions or that the children had been

taken out of school. Although Dr. Piana

testified at the trial that he had

reviewed the highlights of the case

record, this recollection was in conflict

with his previous deposition testimony

that he had read only a two page case

A-21

summary before his interview rather than

the entire case record. This summary

mentioned that Anna and her foster

sister had been involved in "sexual

acting out" at school, but did not state

that Anna had been removed from school

and did not refer to Dr. de Alvarado's

suspicions. Dr. Piana found no psychia-

tric contra-indications to the Senerchias

adopting Anna and her sister. There was

no testimony that he had asked the girls

about sexual abuse at home, even though

he was aware of the reports of Anna's

sexual acting out in school. His

testimony indicated a disinclination to

questioning abouat sexual involvement at

home. It is not clear from the record

whether the Bureau provided Dr. Piana

with a copy of Dr. de Alvarado's earlier

report.

In the summer of 1977,

Mr. Senerchia informed the Bureau he was

A-22

going to divorce Mrs. Senerchia and

planned to marry a young woman

whose child he had fathered. After

Mrs. Senerchia learned of her husband's

plan to divorce her, she went to the

Bureau in August 1977 with Anna and

reported she had found Anna and

Mr. Senerchia in bed together. The

record indicates that the Bureau then

acted promptly in reporting the abuse

to authorities and in moving to protect

the girls.

B.

Liability

The Bureau does not contest

that 42 U.S.C. § 1983 applies to it. As

a placement agency, it had various

Statutory and contractual obligations.

It was charged by state law with the

task of annually recertifying the

Senerchia home. See Doe I, 649 F.2d at

A-23

137. The Bureau also had a contractual

agreement with the Department of Social

Services of the City of New York by

which it undertook, inter alia, to

supervise the foster home, to provide

appropriate comprehensive services, and

to submit periodic reports concerning

the placement so that the City could

monitor the situation. Plaintiff's

evidence showed, however, that there

were some lengthy periods when no Bureau

personnel visited the Senerchia home,

and that these gaps came at critical

times under the events of this case,

Furthermore, the Bureau failed to submit

comprehensive and timely reports.

Finally, and most importantly, as noted

in Doe I, N.Y. Soc. Serv. Law § 413

(McKinney Supp. 1982) “imposed a

Strict duty on the agency to report all

suspected cases of child abuse to the

Department of Social Services." 649 F.2d

A-24

at 145 & n.8 (emphasis added). The duty

of agencies supervising a foster home

to report suspected child abuse was

reiterated on March 5, 1975 in a memoran-

dum by Assistant Commissioner Parry

which emphasized that "[i]t is better,

by far, in the best interests of the

children we are mandated to protect, to

err on the side of reporting cases which

may be unfounded, than not to report and

thereby endanger our children." Doe I,

649 F.2d at 148 n.13. Although the

Bureau's staf psychiatrist, Dr. de

Alvarado, explicitly stated she suspected

sexual activity between Anna and her

foster father, the Bureau transmitted no

report of suspected abuse.

In Doe I, we reversed the

trial court's entry of judgment for the

defendant. We held that the jury had

not been properly instructed with

regard to the meaning of "deliberate

A-25

indifference," the standard of liability.

The trial court had erroneously conveyed

"an impression of deliberate indifference

requiring a higher degree of knowledge,

ill-will and culpability than is actually

the case.” 649 F.2d at 142. Moreover,

"(ijt failed to explain to the jury that

repeated acts of negligence could be

evidence of indifference." Id. We

furthermore noted that gross negligence

and deliberate indifference are "closely

associated" and that the former "creates

a strong presumption" of the latter.

Id. at 143 (footnote omitted). We found

that the trial court erred by instructing

the jury that plaintiff had to show that

the Bureau had actual and specific

knowledge of Anna's mistreatment. Id. at

144-45. We stated liability under

section 1983 could be established if

Supervisory personnel "exhibited deliber-

rate indifference to a known injury, a

A-26

known risk, or a specific duty.” Id. at

145. We also held that the trial court

erroneously excluded certain evidence,

such as parts of the Parry memorandum

and evidence of abuse of Anna's foster

sister, and that the trial court erred

in admitting certain other evidence of

dubious relevance without cautionary

instruction.

After the second trial, the

jury returned a verdict for the plaintiff

and assessed damages at $225,000. The

trial court set aside the verdict and

rejected plaintiff's argument that the

holding in our prior opinion negated its

power to rule on a motion for judgment

notwithstanding the verdict. The trial

judge also held that the evidence was so

overwhelming that no reasonable jury

could have concluded the Bureau acted

with deliberate indifference, although

he believed there was evidence of

A-27

negligence. He stated, however, that if

his determination was reversed on

appeal, the damage award was proper. No

cross-appeal was taken from this latter

determination. Plaintiff appeals the

grant of defendant's motion for judgment

notwithstanding the verdict.

II.

DISCUSSION

There are two primary issues

on appeal:! (1) the application of the

law of the case doctrine and (2) whether

the evidence was so overwhelming that no

IWwe reject the Bureau's

additional contention that this court

lacks jurisdiction under Fed. R. App. P.

4(a). The district court entered

judgment, n.o.v. for the Bureau on

June 4, 1982 and subsequently granted

plaintiff's motion for reargument but

adhered to its original decision on

June 24, 1982. The notice of appeal,

filed June 30, 1982, was timely, and it

was not error for plaintiff to have

designated the appeal as from the

June 4, 1982 entry of judgment.

A-28

reasonable jury could find the Bureau

acted with deliberate indifference,

thereby justifying entry of judgment

n.e.O.V.

A.

Law of the Case

1. Mandate of Prior Decision

Under one prong of the law of

the case doctrine, "When an appellate

court has once decided an issue, the

trial court, at a later stage of the

litigation, is under a duty to follow

the appellate court's ruling on that

issue." United States v. Cirami,

563 F.2d 26, 32 (2d Cir. 1977); see 18

C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure § 4478,

at 792-93 (1981). This doctrine applies

to issues that have been decided "either

expressly or by necessary implication."

Munro v. Post, 102 F.2d 686, 688 (2d

A-29

Cir. 1939); see Fogel v. Chestnutt, 668

F.2d 100, 108 (2d Cir. 1981), cert.

denied, 103 S. Ct. 65 (1982). Thus if,

in Doe I, we decided that there was

sufficient evidence to present a jury

question on liability under section

1983, that holding would be binding on

the lower court.2

In arguing that we did in fact

hold a jury question on liability

existed which precluded the district

court from overturning the jury verdict,

2This contrasts with Borger

v. Yamaha International Corp., 625 F.2d

390 (2d Cir. 1980), where the appellant

had not preserved the sufficiency of the

evidence issue. We ordered retrial

because of trial errors and explicitly

reserved consideration of the sufficiency

issue, stating the law of the case

doctrine would not prevent appellate

review of the evidence after retrial.

Id. at 395.

A-30

appellant relies particularly on the

following language:

Defendant argues that any

errors committed by the trial

court would have been harmless

because plaintiff's case was

so weak that it should never

have gone to the jury. We

disagree. This is a compli-

cated and difficult case.

Whether the Catholic Home

Bureau's omissions were the

product of deliberate indiffer-

ence and proximately caused

any portion of Anna's abuse

were questions of fact to be

resolved by the jury.

649 F.2d at 149.

The Bureau characterizes this

passage as mere dicta. We do not so

regard it. Although the decision to

remand for a new trial was based on a

finding that certain jury instructions

and evidentiary rulings were erroneous,

the plain language quoted above indicates

that the sufficiency of the evidence

question was presented to and decided by

the earlier panel. Furthermore, 28

U.S.C. § 2111 (1976) directs appellate

A-31

courts to disregard harmless error.

It would have been unnecessary to remand

for a new trial because of erroneous

jury instructions and evidentiary

rulings if plaintiff's evidence on

liability (including that proffered and

improperly excluded) was insufficient

under section 1983 as a matter of law.4

It is therefore clear that Doe I held

plaintiff presented sufficient evidence

3That section provides in

pertinent part: "On the hearing of any

appeal... , the court shall give

judgment after an examination of the

record without regard to errors or

defects which do not affect the substan-

tial rights of the parties."

4similar reasoning was used

by the court in Pyramid Life Ins. Co. v.

Curry, 291 F.2€ 411, 413 (8th Cir.

1961). See also Otten v. Stonewall Ins.

Co., 538 F.2d 210, 213 (8th Cir. 1976)

(when earlier panel remanded for new

trial based on erroneous jury instruc-

tions and rejected appeal of j.n.0.Vv.

motion in a footnote, that opinion was

construed as reaching sufficiency of the

evidence question because court would

not otherwise have reached new trial

issue).

A=-32

to go to the jury. Accordingly, resolu-

tion of the sufficiency issue became

part of the law of the case.

There is some authority in

other circuits which would permit the

district court to enter a directed

verdict or j.n.o.v. if there was substan-

tially different evidence at the second

trial. See, e.g., Otten v. Stonewall

Insurance Co., 538 F.2d 210, 212 (8th

Cir. 1976); Johnson v. Bernard Insurance

Cir. 1976); Pyramid Life Insurance Co.

v. Curry, 291 F.2d 411, 414 (8th Cir.

1961).

We need not decide whether to

adopt that precedent here, see United

States v. Fernandez, 506 F.2d 1200,

1202-03 (2d Cir. 1974) (trial court

has no power to alter mandate of the

appellate court based on "new evidence"),

because we reject the Bureau's contention

A-33

that there was substantially different

evidence presented at the second trial

of this case. We have examined the

records of both trials and conclude the

evidence at the second trial was not

substantially or materially different.

The core of plaintiff's case pertinent

to the issue of deliberate indifference

was very Similar at both trials and, if

anything, was probably stronger at the

second trial.> Although the defendant

Bureau called several new witnesses at

the second trial, there was little, if

any, material new evidence that would

justify departure from the law of the

SPor example, the evidence

concerning Mr. Senerchia's 1976 allega-

tions about the sexual acting out of

Anna's foster sister which had been

erroneously excluded from the first

trial was introduced in the second

trial.

A-34

case. 6 Merely cumulative evidence

does not constitute such a justification.

See First National Bank v. Material

Service Corov., 597 F.2d 1110, 1116 (7th

Cir. 1979).

60ne witness' testimony went

only to the question of damages.

The testimony of Sister Una McCormack, a

Bureau executive administrator, and of

Dr. Lewis, the psychologist who inter-

viewed Anna in January 1975, added

little to the case records and reports

that had been introduced at the first

trial. Dr. Lewis referred often to

her reports during the course of her

testimony and Sister Una had little

independent recollection of the January

1975 events. Sister Una had no active

involvement in the case aaqain until

August 1977 when Mrs. Senerchia

made her disclosure to the Bureau.

Ms. Dellaverson, the caseworker from the

summer of 1975 until May 1977, also

testified. Her case records were in

evidence at the first trial, and her

testimony was arguably new primarily in

her assertion that she had visited the

foster home every three weeks during

this period, a fact at variance with

her case records. This contradicted

testimony cannot justify taking the

question from the jury.

A-35

2. Reconsideration of Prior

Appellate Decision

Appellee Bureau urges that if

we find the prior decision controlling

on the district court, we should never-

theless reconsider it. A second prong

of the law of the case doctrine, however,

encompasses “adherence by an appellate

court to its own decision at an earlier

stage of the litigation." United States

v. Cirami, 563 F.2d 26, 33 n.6 (2d Cir.

1977). As we have noted on numerous

occasions, we view this aspect of the

law of the case doctrine as one of

sound, albeit not inexorable, practice.

See, e.a., Rolf v. Blyth, Eastman Dillon

& Co., 637 F.2d 77, 87 (2d Cir. 1980);

Crane Co. v. American Standard, Inc.,

603 F.2d 244, 248 (2d Cir. 1979)

(Crane III); United States v. Fernandez,

506 F.2d 1200, 1203 (2d Cir. 1974).

Accord Insurance Group Committee v.

Denver & Rio Grande Western Railroad Co.,

329 U.S. 607, 612 (1947). We have

repeatedly stated we will not depart

from this sound policy absent "cogent"

or "compelling" reasons. See, e.g.,

United States v. Fernandez, 506 F.2d at

1203-04; Dale v. Hahn, 486 F.2d 76, 81

(2d Cir. 1973), cert. denied, 419 U.S.

826 (1974). The major grounds justifying

reconsideration are "an intervening

change of controlling law, the avail-

ability of new evidence, or the need to

correct a clear error or prevent manifest

injustice." 18 C. Wright, A. Miller &

E. Cooper, Federal Practice and Procedure

§ 4478, at 790 (1981) (footnote omitted);

see Melona v. Micronesian Claims Commis-

sion, 643 F.2d 10, 17 (D.C. Cir. 1980);

White v. Murtha, F.2d 428, 431-32 (5th

Cir. 1967).

In the previous section we

discussed and rejected the Bureau's new

A-37

evidence claim. We similarly reject

the Bureau's characterization of the

prior appellate decision as clear error

leading to manifest injustice.’

We turn then to the Bureau's

Claim that the intervening decision in

Youngberg v. Romeo, 102 S. Ct. 2452

(1982), has altered the applicable

Standard of liability under section

1983,8 Romeo involved a section 1983

damage suit. The Court held that

mentally retarded persons involuntarily

7The Bureau contends that

the previous panel clearly erred in

finding certain jury instructions

misleading and in requiring other

instructions. We disagree for the

reasons set forth in the earlier opinion.

See Doe I, 649 F.2d at 141-47.

8The Bureau's further

contention that the decision in Parratt

v. Taylor, 451 U.S. 527 (1981), has

changed the controlling law has no

merit. Parratt involved a state

prisoner's section 1983 suit for negli-

gent loss of a hobby kit. Unlike this

case, only mere negligence was asserted,

and the deprivation complained of was a

property loss.

A-38

confined in a state institution for the

retarded have substantive rights under

the due process clause of the Fourteenth

Amendment. The Court stated that

professional caretakers violate these

rights “only when the decision by the

professional 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 judament." Id. at 2462 (footnote

omitted). In so stating, the Court

adopted what is essentially a gross

negligence standard.

Even if the Romeo standard of

liability is applicable outside of an

institutional setting, it is not more

favorable to the Bureau than the

deliberate indifference test which was

applied in Doe I. The deliberate

indifference test stemmed from the

A-39

decision in Estelle v. Gamble, 429 U.S.

97, 104-05 (1976), where the Court held

that deliberate indifference to a

prisoner's serious medical needs consti-

tuted cruel and unusual punishment under

the Eighth Amendment and stated a cause

of action under section 1983. The Romeo

Court, however, stated that it was error

to apply the deliberate indifference

Standard when considering the due

process rights of retarded persons

involuntarily committed. 102 S. Ct. at

2456 n.11. Such persons are “entitled

to more considerate treatment and

conditions of confinement than criminals

whose conditions of confinement are

desianed to punish.” 102 S. Ct. at 2461

(citina Estelle v. Gamble, 429 U.S. at

104). Thus the standard of liability

which Anna was required to meet in

this case may have been stricter than

that suggested by the Romeo opinion.

A-40

Conseauently, we reject the Bureau's

assertion that the Romeo decision has

effected a change in the controlling law

so aS to make our prior decision clear

error,? and hold that the plaintiff

was entitled to her jury verdict under

the law of the case.

B.

Propriety of Judgment n.o.Vv.

Alternatively, we hold that

entry of judgment n.o.v. for the

defendant Bureau was unwarranted because

the record contains sufficient evidence

from which a jury could reasonably find

deliberate indifference. The standard

9"Mere doubt" of such a

change is insufficient to open a matter

for full reconsideration. See Fogel v.

Chestnutt, 668 F.2d 100, 109 (2d Cir.

1981), cert, denied, 103 S. Ct. 65

(1982); zadanok Vv. Glidden Co., 327 F.2d

944, 952 (2a Cir.), cert. denied, 377

U.S. 934 (1964).

A-41

for grant of judgment n.o.v. has been

recently articulated as follows:

[T)he trial court cannot

assess the weight of conflict-

ing evidence, pass on the

credibility of the witnesses,

or substitute its judament for

that of the jury. Rather,

after viewing the evidence in

a light most favorable to the

non=-moving party (giving the

non=-movant the benefit of all

reasonable inferences), the

trial court should grant a

judgment n.o.v. only when

(1) there is such a complete

absence of evidence supporting

the verdict that the jury's

findings could only have been

the result of sheer surmise

and conjecture, or (2) there

is such an overwhelming amount

of evidence in favor of the

movant that reasonable and

fair minded men could not

arrive at a verdict against

him.

Howes v. Great Lakes Press Corp., 679

F.2d 1023, 1030 (2d Cir.) (quoting

Mattivi v. South African Marine Corp.,

"Huguenot," 618 F.2d 163, 167-68 (2d

Cir. 1980)), cert. denied, 103 S. Ct.

452 (1982). The trial court in this

case premised its decision on the second

A-42

around referred to in Howes. It relied

particularly on the facts that Bureau

personnel had often visited the plaintiff

and the foster home and had provided or

arranaed for many general services for

Anna's care, such as tutorine and

medical services, and furthermore that

Anna expressed no discontent with

her placement and, to the contrary,

indicated her desire for adoption. The

judge characterized as at most "mere

negligence," "poor judaqment" or "somewhat

careless" the Bureau's failure to comply

with periodic reporting requirements,

its failure to visit the foster home

durina at least two lengthy periods and

its failure to report Dr. de Alvarado's

suspicions of sexual abuse which the

judge considered to be “almost equal to

a guess." In so ruling, the court

usurped the function of the jury.

A-43

In Doe I we stated that an

agency could be held liable under

section 1983 if "its top supervisory

personnel ... exhibited deliberate

indifference to a known injury, a known

risk, or a specific duty, and their

failure to perform the duty or act to

ameliorate the risk or injury was a

proximate cause of plaintiff's depriva-

tion of rights under the Constitution."

649 F.2d at 145. In Doe I we referred

to two separate theories of liability

which could be applied here. One theory

is predicated on the Bureau's failure to

comply with specific statutory duties,

such as to report all suspected child

abuse to the Department of Social

Services.!9 Id. at 145 & n.8. This

'0See N.Y. Soc. Serv. Law

§ 413 (McKinney Supp. 1982). We also

noted that a March 1975 memorandum of

Assistant Commissioner Parry interpreting

this requirement and reminding agencies

of this duty stressed that any error

duty was characterized as "specific"

and "unequivocal," and the Bureau's

failure to act furnished a plausible

basis for the jury to infer deliberate

indifference. We also held that

liability could be based on inferring

deliberate unconcern "from a pattern of

omissions revealing deliberate inatten-

tion to specific duties imposed for the

purpose of safeauarding plaintiffs

from abuse." Id. (citation omitted).

Moreover, the failure to report could be

taken as "incremental documentation of a

pervasive pattern of indifference."!!

Id. at 146 (footnote omitted).

The fact that the agency may

have been attentive to Anna's general

should be on the side of reporting.

Doe I, 649 F.2d at 147 n.13, 147-48.

llwe also noted that New

York law defines keeping a child out of

school as child abuse. See Doe I, 649

F.2d at 146 n.12.

A-45

care and provided Anna with general

services did not preclude a jury finding

¢ deliberate indifference respecting

one very significant aspect of her

welfare the protection from abuse. See

Murrell v. Bennett, 615 F.2d 306, 310

n.4 (5th Cir. 1980) (one episode of

gross misconduct with respect to

prisoner's medical care not necessarily

excused by general pattern of attentive-

ness). Furthermore, although Anna's

Silence about her abuse is uncontested,

the record contains expert testimony

that abused children typically do not

come forward and usually wish to remain

in the home. Even defendant's expert

agreed that plaintiff's desire for

adoption was not inconsistent with her

having been physically or sexually

abused. The jury could infer that

childcare professionals should know this

fact, especially when their own expert

A-46

psychiatrist informs them she believes

abuse is occurring !2 and the child

is viewed as passive and of limited

intelliaence by agency personnel. None

of the facts relied on by the trial

court justified its overriding of the

jury's verdict.

A reasonable jury could have

inferred deliberate indifference by the

Bureau from the following evidence: the

failure to report suspected child abuse

l2pne trial judge's charac-

terization of Dr. de Alvarado's opinion

as a "guess" is unwarranted since Dr. de

Alvarado used accepted clinical methods,

i.e. observation of reactions and

familiarization with case history.

Although the trial court construed the

record as showing that the Bureau found

Dr. de Alvarado's opinion to be unjusti-

fied, from the facts presented to it,

the jury could have concluded that

BLreau personnel should have evaluated

Dr. de Alvarado's suspicion in light of

her extensive psychiatric clinical

experience over a twenty year period, as

distinguished from that of Dr. Lewis,

the agency psychologist, who had received

her doctoral degree in January 1975,

the same month she interviewed Anna and

Mr. Senerchia.

A-47

to relevant authorities after being

informed in March 1975 of Dr. de

Alvarado's opinion, especially when

viewed against a background of

unusual cirmcumstances surrounding

Mr. Senerchia's removal of Anna from

school; the failure after the April 10,

1975 staff conference to carry out any

further investigation of possible

sexual abuse; the failure to verify

Mr. Senerchia's allegations of Anna's

sexual acting out in school with school

authorities; the failure to take action

after school officials informed the

Bureau that the events described by Mr.

Senerchia could not have transpired and

after Mr. Senerchia changed his story

Significantly; acquiescence in Anna's

remainina out of school for an entire

semester; the failure to conduct any

home visits between December 1974 and

May 1975; the failure to report Anna's

A-48

school absence, alleqed sexual acting

out or Dr. de Alvarado's abuse suspicion

in the June 1975 annual report to the

Department of Social Services; the

failure to take decisive action in 1976

when Mr. Senerchia reported markedly

similar sexual acting out by Anna's

foster sister; and the failure either of

Bureau personnel to provide Dr. Piana

with adequate information or the failure

of Dr. Piana, in light of the information

given, to question Anna concerning

sexual abuse in his March 1977 interview.

As an appellate court, we do not sit to

evaluate the validity or plausibility of

the Bureau's explanations for its

actions. There was sufficient evidence

for the liability issue to be presented

to the jury, and the jury made its

decision.

A-49

Til.

We conclude that the law of

the case established by the earlier

appellate decision in Doe I precluded

entry of a judgment n.o.v. for the

defendant at the second trial and that

no compelling reason has been established

to justify our reconsideration of that

decision. In any event, entry of

judgment n.o.v. was erroneous because

there was sufficient evidence for a jury

finding of liability under section 1983.

Consequently, we reverse and

remand for reinstatement of the jury

verdict.

A-50

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

eeeeeeeewoeeoeeoeeesooeeoee =] X

MARIE DOE, et al.,

Plaintiffs,

Vv. 79 Civ. 1884(CLB)

CATHOLIC HOME BUREAU

FOR

DEPENDENT CHILDREN,

Pefendant.

ese eeeeesoeooooeoeooooaoee ».4

June 3, 1982

4:30 p.m.

Before:

HON. CHARLES L. BRIEANT,

District Judge

APPEARANCES:

LANSNER & WENDT

Attorneys for Plaintiffs

DAVID LANSNER

CAROLINE KUBITSCHEK of Counsel

FREDERICK J. MAGOVERN

Attorney for Defendant

LOUIS MARTINE, of Counsel

A-51

I would like to say in response

to Mr. Martine that all of the facts

which were before the jury in this case

were also before the jury in the first

trial. The Court of Appeals in reviewing

all of that testimony and all of those

documents said this was a case that had

to go to the jury and I believe that

this court is bound by that.

THE COURT: Is there a par-

ticular line of the decision that you

are quoting from?

MS. KUBETSCHEFK: Yes, your

Honor, the last paragraph of the deci-

sion, of the majority opinion, your

Honor. It is on page 149, I believe.

THE COURT: I believe I left

my copy upstairs.

MR. MARTINE: You may have

ours, your Honor.

THE COURT: You may continue,

Ms. Kubitschek.

MS. KUBITSCHEK: Your Honor, I

have nothing to add. All of my arguments

are in the memorandum of law.

THE COURT: I think I ought to

address myself first to that point. You

may be seated, if you like.

The court reads the language

there which says as follows and I think

the whole paragraph has to be read in

context:

"The defendant, that being the

Catholic Home Bureau, argues that any

errors committed by the trial court"--

and I insert parenthetically they mean

errors in the charge or ruling on the

admissibility of evidence--continuing

the quotation,

would have been harmless

because plaintiff's case was

so weak it should never have

gone to the jury. We disagree.

This is a complicated and

difficult case. Whether

the Catholic Home Bureau's

omissions were the product

of deliberate indifference

A-53

and proximately caused any

portion of abuse were questions

of fact to be resolved by

the jury.

Thereafter, the panel majority

reversed and remanded for a new trial.

The court treats that literally, but

does not believe that the effect of

that language or its intention would

necessarily sterilize the power of this

court to make a ruling on the merits on

a motion for judgment NOV. Were it so,

they would have told us.

It is conceivable that a

motion for a new trial would have been

made by plaintiff and the court would

certainly have had jurisdiction to hear

that if there had been a defendant's

verdict. The Court of Appeals opinion

does not say how the jury must resolve

the case on retrial or what this court's

reaction to that resolution must be on

a Rule 50(G) motion, nor could it do so.

A-54

I do believe that it is fair

to say that the cse was probably

tried better by plaintiff the second

time. That much of the araument of

Ms. Kubitschek here today is valid.

However, I do not regard this opinion as

constituting such law of the case in

this matter as to remove this court's

power to act on this motion in accordance

with this court's view of the law and

the facts.

The court believes that

the point is regulated by the second

alternate basis set forth in the Court

of Appeals opinion in Armstrong v.

Commerce Tankers Corporation, 423 F.2d,

957 at page 959, and I think I will read

the quotation entirely:

It says

Whether the motion is one

to direct a verdict or to set

aside a verdict, which the

jury has returned, the test

applied by the court is the

A-55

same. The evidence must be

viewed in the light most

favorable to the party other

than the movant. The motion

will be granted only if, one

[and I will omit a reading of

one because it is inapplicable

here) or, two, the evidence is

so strongly and overwhemingly

in favor of the movant that

reasonable and fair-minded men

in the exercise of impartial

judgment could not arrive at a

verdict against him.

Now, in this case the plain-

tiff, Anna Piniero Faria, who is referred

to in most of the papers as Anna Doe,

alleges that the defendant, Catholic Home

Bureau, violated her civil rights and

the Court of Appeals in its prior

opinion in this very case said:

There are two fundamental

requisites for Section 1982

liability to be imposed. The

first is that the omissions

must have been a substantial

factor leading to the denial

of a constitutionally protected

liberty or property interest.

The second is that the offi-

cials in charge of the agency

must have displayed a

mental state of deliberate

indifference in order to

meaningfully be termed culpable

under Section 1983.

There is a quotation within

the quotation there which I have omitted

to note.

That is the applicable law in

this case. Now, this court instructed

the jury that mere negligent care or

negligent oversight or poor judgment by

a child care agency does not constitute

deliberate indifference arn, therefore,

will not arise to the level of a consti-

tutional violation sufficient to justify

a plaintiff's verdict in an action based

on a federal claim.

There must be more than simple

neqligence, carelessness, unintentional

fault, inaction or poor judgment. A

deliberate misfeasance or deliberately

indifferent action by the defendant,

which is required for the plaintiff to

recover, presents a state of mind

A-57

distinct from that present in a case of

mere negligence, simple carelessness or

poor decision-making.

The key question in this case

on the issue of liability is whether the

state of mind of the defendant's staff

was such that the defendant, as a

corporate body, or equivalent to a

corporate body, was deliberately in-

different to the consequences of its

actions and its failure to act insofar

as concerns this plaintiff.

If only simple negligence

and not deliberate indifference is

established, then the plaintiff cannot

recover in this court because the

pendent state law negligence claim was

severed and dismissed on the eve of the

previous trial in this case. The order

granting that relief to the defendant

was not appealed and, indeed, this

court notes that Mrs. Faria has and is

presently pursuing her state claims in

the state courts.

It is too late at this time to

argue whether they should have been

regarded as pendant claims or whether it

was an abuse of discretion to sever and

dismiss them. That is not before me.

I have reviewed to the facts

at trial and I find that it was estab-

lished and is uncontroverted that the

defendant's staff visited the plaintiff,

her foster parents and the foster home

on many occasions, provided extensive

additional matters of care, including

tutoring and medical and psychological

and psychiatric examinations and

treatment and other services for the

plaintiff.

Many of these items are listed

in the defendant's affidavit in support

of this motion. The totality of the

trial record shows considerable effort

over the years on the part of this

agency which might be characterized as

beyond the call of its statutory duty.

These items are uncontested.

Over the years the plaintiff,

even as she gained maturity, spoke

favorably of her foster home, her case

workers and her foster parents and

sought adoption by the foster parents.

Now, there is also present in

the otherwise favorable picture three

other facts. One of them is that over

the years this defendant failed to

complete or submitted late various

documents and other paperwork required

by the city, state and federal

regulations.

Secondly, during several

periods of time, one of which was

lenathy, the defendant failed to have

its case workers visit the foster home

and examine the living conditions there.

A-60

And, also, the defendant did

not report the plaintiff's case to the

New York City Department of Social

Services as a suspected case of child

abuse. Dr. de Alverado drew the

inference and expressed the opinion,

almost equal to a guess, that the

plaintiff was "sexually involved" with

her foster father.

Even the words, which Dr. de

Alvarado's report contains, do not

necessarily indicate by themselves child

abuse, although they are suagestive that

the placement should have been changed

or reviewed.

The defendant does not deny

that it failed to complete some of the

paperwork Or submitted documents late.

The evidence at trial does show that

while the home may not have been formally

visited, the plaintiff was seen by

defendant's staff during these periods,

A-61

and essentially we come down to what the

court reqards as the controlling and

uncontroverted evidence here, which is

that the responsible staff and officers

of the agency, defendant, formally and

informally reviewed Dr. de Alvarado's

inference or opinion and found it to be

unjustified and unsupported and they

disagreed with her.

As a group and individually

they exercised judqment and it turned

Out, at least tested by hindsight, that

this was poor judgment.

In addition, the plaintiff

presented uncontradicted evidence that

the foster father interfered with the

defendant's attempts to visit the

plaintiff's home, foster home, and

gather other information.

Because the home appeared to

be a happy one and the plaintiff appeared

content, the defendant's people were

A-62

apparently hesitant to harass the foster

parents or disturb the family environment

and attempted thereby and thereafter to

minimize intrusiveness to inspect the

family unit.

I regard this as mere negli-

gence, even when tested by hindsight,

which is not a proper standard in

determining the reasonableness of the

actions of persons resulting in damage

even in a negligence case, which this is

not.

The court finds and concludes

that considering these facts particularly

and all the other facts established by

the totality of the evidence at trial,

viewed in the light most favorably to

the plaintiff and resolving all issues

of credibility in her favor, the evidence

could not possibly support a verdict in

favor of the plaintiff on liability as a

federal civil rights action within the

rubric of the Court of Appeals opinion

in this very case.

I note that I do not question

the jury's good faith or the jury's

determination on the issue of damages.

It is only the issue or the finding of

civil rights liability which is the

subject of a valid motion on the part of

the defendant. Although the defendant

may have been somewhat careless in its

paperwork and may have used bad judgment

in its resolution of the opinion tendered

to the staff by Dr. de Alvarado, there

was insufficient proof in the totality

of the facts in this record to permit a

reasonable juror to infer that the

agency operated with a state of mind of

deliberate indifference.

The jury may have been able to

find the defendant guilty of simple

negligence. The court, as I noted

earlier, is making no finding on that

A-64

point and that issue is not before us

and the plaintiff's negligence claims

are not pending here any more, but they

are pending in the state court, which

has the power to deal with them.

This is a case which cries out

for justice for the unfortunate abuse to

which this plaintiff was subjected by

Mr. Senerchia. The court cannot help

but feel a great deal of concern and

sympathy over what was developed here in

the evidence at trial. The court has to

focus on the law having to do with the

case as established by the Court of

Appeals and must put out of its mind the

case founded on mere negligence or any

claims founded on poor judgment, which

do not rise to the level of civil rights

violation.

If the court, out of concern

for this case, allows this verdict to

stand on the issue of liability, then

there is no end in sight. It was not

the intention of Congress, nor the

Supreme Court, that Section 1983 claims

Swallow up all errors of judgment of

omissions or bad judgment exercised on

thr part of state officials, noting that

this agency is, as a matter of law,

exercising state action in its adminis-

tration of the plaintiff's placement.

The court will grant the

motion for judgment notwithstanding the

verdict and will direct that judgment be

entered in favor of the defendant on the

issue of liability.

The court will direct that no

costs be awarded to defendant. The

court specifically declines to order,

alternatively, that there be a new

trial. The court does not believe that

the verdict is a product of passion or

indignation on the part of the jurors.

The jury verdict may reflect in part an

element of superior advocacy at trial on

the part of the plaintiff's side of the

case, and that is certainly not unusual

in litigation.

The court believes that juries

generally and this jury are particularly

able to assess monetary damages for

personal injuries and for pain and

suffering and for the shame and hurt

that followed from the injuries inflicted

on this plaintiff by this non-party

Mr. Senerchia and the court would not

disturb the damages as fixed by the jury

and would not and will not grant a new

trial alternatively.

The court does find that

the evidence on the issue of liability

is so strongly and overwhemingly in

favor of the movant that a reasonable

and fair-minded juror in the exercise of

impartial judgment could not arrive at a

verdict of liability. The court does not

A-67

believe that the verdict of liability

having been reached in the fashion in

which it was, tainted or affected

adversely in anyway the portion of the

jury's deliberations directed to damages.

Should a higher authority

conclude that this court is wrong on the

issue of liability in its evaluation fo

teh evidence, then the amount of the

damages as awarded should stand and, of

course, in that event th eplaintiff

would be entitled also to recover her

legal fees and costs.

The court finds this to be a

very sad and moving case. The court has

urged the parties to try to resolve it,

bearing in mind that they have a negli-

gence case across the street which

eventually must be reckoned with. The

court certainly cannot require the

parties to do it, but my duty to the

next case, which will come up in this

court, requires that the court focus its

considerations on the law and whether

the evidence in this trial was sufficient

to support a finding of deliberate

indifference, and I find beyond doubt it

was not sufficient to do that and that

there was no basis upon which a finding

of deliberate indifference here on the

part of the entity could be found by

jurors acting reasonably, and that is

essentially a finding which in the state

court system would be described as being

found as a matter of law.

Now, at this time I will

entertain requests for additional or

further findings and will dispose of the

motion accordingly and direct the clerk

to enter a judgment as directed by the

court NOV in favor of defendant without

costs.

Now, I will ask you first,

Mr. Martine, do you have other or

A-69

additional requests for the court to

find?

MR. MARTINI: I do not, your

Honor.

THE COURT: All right, the

court will ask Ms. Kubitschek whether

there are additional findings that you

would like to have the court make?

MS. KUBETSCHEK: Yes, your

Honor. I would like the court to make a

finding that the Catholic Home Bureau

was negligent.

THE COURT: The court expresses

the personal belief that a reasonable

jury could find that they were negligent.

The court regards the request to find as

being outside the scope of the pleadings

in this action and not an issue which

was properly litigated in the case. So

that the matter may be taken in context,

it is my own view that if I were a trier

of the fact, I could reasonably find mere

A-70

negligence here, failure to exercise

reasonable care in light of the known

risks and undoubtedly would do so had

that matter been litigated before me as

the trier of the fact.

However, it was not, and it

was not so submitted to this jury and it

was not an issue which this court can

resolve and anything I might say on the

point certainly is not an estoppel by

judgment when you ultimately try your

case across the street in the state

system.

I think such a finding would

be justified on this trial record.

Anything else?

MR. MARTINI: Nothing on

behalf of the defendant, your Honor.

THE COURT: Anything else?

MS. KUBITSCHEK: No, your

Honor.

A-71

THE COURT: I will say it

again. I think counsel who represented

this young lady did a fine workmanlike

job and this court occassionally has an

unpleasant duty, but it is still my

duty.

Thank you all very much.

A-72

CHARGE OF THE COURT

(Pollack, J.)

Mrs. Chapman and ladies and

gentlemen of the jury, it is important

to keep your attention on what you must

decide in this case and not allow

yourselves to be diverted to other

questions, no matter how interesting.

We've been presented with a

picture of an unfortunate family, the

family Pinairo. The mother, suffering

from a psychiatric illness with frequent

hospitalizations therefor, gave birth to

five children. The father, suffering

from a chronic drinking problem, held

only sporadic employment. Unable them-

selves to care for and bring up their

children, they turned four of them over

to the City's Department of Social

Services for foster care. Later they

gave up three of them for adoption and

two were adopted.

In this case we are concerned

with only one of the five children, the

girl Anna. She is the only plaintiff

before you. She is suing not the

Senerchias but the Catholic Home Bureau,

a child care agency, which we are told

oversees 1,000 to 1,500 children during

the course of the year.

The complaint against the

Bureau is that it knowingly and inten-

tionally allowed Anna to be mistreated

in the foster home in which the Bureau

placed Anna, the home of Mr. and

Mrs. Senerchia in Staten Island, and

that this violated Anna's constitutional

right to be free from the infliction of

physical and mental harm.

Now, children in legal custody

of the Commissioner of Social Services

have the right to receive proper care

and supervision under federal law and

the right not to be subjected to physical

A-74

Or mental mistreatment under state

law.

Anna was born April 22, 1961.

When she was about two and a half years

old, the Pineiros gave her up to the City

Department of Social Services to place

her in foster care. The Department of

Social Services turned her over to an

agency, the Catholic Home Bureau, which

finds foster homes for such children in

which to live and be supported and grow

up.

The Bureau located the home of

the Senerchias. Mr. Senerchia was a

policeman. His wife was a home maker.

They had their own four children. Their

home was recommended to and certified by

the authorities as eligible to take in

and care for foster children. They took

in four foster children.

Anna remained with the

Senerchias for nearly fourteen years,

A-75

until August 1977. Meantime she was

housed and fed and clothed and, when old

enough, sent to school, given outside

tutoring assistance, canoeing trips or

camping trips, medical attention, and

lived with a younger sister and other

children in the house.

When she reached her teens,

Anna wanted to be adopted by the

Senerchias, but the agency was not

willing to sanction this. There was a

question, even though the psychiatrist

seemed to believe that the Senerchias

could handle it. Mr. Senerchia had had

two major heart attacks.

Questions arose concerning

Anna's conduct at school, and the

Bureau, which had been following up

Anna's progress through a psychologist,

decided that Anna should be seen by a

psychiatrist, Dr. de Alvarado, to

whom Anna was referred, according to

A-76

the doctor's report, for psychiatric

evaluation as a part of an overall effort

to understand her situation in her foster

home and her alleged conduct at school.

She was then fourteen years old.

Anna was seen by the psychia-

trist on March 19, 1975. The doctor's

report is in evidence and you heard it

read from. Anna told the doctor she had

come to the doctor to find a different

school, any kind of school. Dr. de

Alvarado's report contains other matters,

including that she had lied aboaut

her activities, and Dr. de Alvarado

recommended that Anna be placed in an

institution. But the administrative

staff, on review, saw no reason to put

Anna away in an institution.

You have to say, from what has

been received in evidence, what the

truth is and to judge this on all the

evidence and explanations you've heard,

A-77

including the emotional and mental

condition of the parties involved and

their capacity to tell you what the

facts are.

At all events, for the purposes

of this case the plaintiff seeks to

claim that the conduct of the Catholic

Home Bureau indicated that it intended

that Anna should be mistreated by her

foster father or at least was purposely

indifferent to whether or not she was

being mistreated by him. We have the

notes of the Bureau, the case workers'

and supervisors' notes made during the

years, and the testimony of the witnesses

to give us a running account of events

from which you may glean whether there

was any intention to allow Anna to be

mistreated in the foster home.

You have received the informa-

tion of the doctor's vaginal tests

following the alleged episodes related

A-78

to have occurred in August 1977. You

may wish to consider this together with

all the other evidence in appraising the

credibility of what you have been told

by the various witnesses.

The evidence, as I recall--and

I will explain to you that everything I

have said or will say about the evidence

is only my recollection, which is not in

any way binding on you since your

recollection and interpretation of the

evidence controls here. I started to

say that the evidence shows that on

August 23, 1977 Mrs. Senerchia triggered

the action that the Bureau took on that

very day. On August 23, 1977 the Bureau

barred Mr. Senerchia from the home and

within a matter of days moved Anna from

that home to the home of Mr. and Mrs.

Mount, the daughter and son-in-law of

Mrs. Senerchia, closing the Senerchia

home as a foster family shelter.

Within a short time Anna found

the restrictions imposed by the Mounts,

Mr. and Mrs. Mount, on her movements to

be onerous, or irksome, and asked to be

placed elsewhere. She was promptly

relocated in the Bronx home of Mr. and

Mrs. Melendez. That lasted only a short

time. Mrs. Melendez and Anna came to

blows, Anna having struck Mrs. Melendez

the first blow, and that ended Anna's

Stay there. Anna was now seventeen

years old. She decided to go to

the home of her natural parents, the

Pineiros. But that too ended shortly,

and Anna voluntarily went back to the

home of Mr. and Mrs. Mount, with whom

she had a good relationship.

Along about here she met

Mr. Faria and married him on November

13, 1978. Their child was born on

June 6, 1979. She now lives in Georgia.

A-80

Anna seeks in this case money

damages from the Catholic Home Bureau,

claiming that it is responsible for

Mr. Senerchia's mistreatment of her

physically and sexually. As I've told

you during the trial, this is a federal

case, in which the plaintiff must prove

that her constitutional rights were

violated by the Bureau. That requires

the plaintiff to prove that the defendant

knowinaly and intentionally harmed the

plaintiff or deliberately, with knowledge

that she was being mistreated in the

foster home, intentionally permitted

this to occur or were intentionally

indifferent to whether it was occurring.

The Catholic Home Bureau is

not to be held liable because it did or

didn't report what was going on in school

or elsewhere to the Department of Social

Services. That is no part of Anna's

constitutional rights. That is between

A-81

the Home Bureau and the Department of

Social Services. Whether they acted

wisely or not and whether they had or

did not have duties to the Department

of Social Services is not the issue

here.

In a federal court case,

negligent care or negligent oversight by

a child care agency or foster parents

does not prove a claim for deliberate

mistreatment, does not prove a constitu-

tional claim. Negligence or carelessness

or unintentional fault do not constitute

violation of a constitutional right. If

that occurred, the defendant is entitled

to your verdict.

In short, the plaintiff in

this type of case, in order to recover,

must establish with credible evidence,

believable evidence, that the defendant

on trial knowingly and intentionally

closed its eyes to and permitted or

A-82

Knowingly and intentionally caused the

mistreatment which the plaintiff says

violated her rights.

Mr. Senerchia, as I have

said, is not the defendant who is being

sued here. Whether you approve of him

or don't approve of him is not to he

held against the Catholic Home Bureau.

This means that the plaintiff must prove

that the defendant intended the actions

or failures to act of the Senerchias,

and did so deliberately and voluntarily,

and that this proximately caused the

mistreatments complained of. Hindsight,

of course, is superior to foresight.

But the conduct is not to be judged by a

wisdom born after the event, where

deliberate conduct is the kind of

conduct you must find to have occurred

in the first place.

You, the jury, are the sole

judges of what the facts are that were

A-83

credibly proved. Your recollection of

the evidence controls, not my recollec-

tion or statements of what I recall of

the evidence, not the statements,

arguments or recollection of the lawyers

or how they put the evidence together.

What did you find the witnesses and

exhibits to say? What did you believe

about what was said and written? That

is the evidence that controls.

On the other hand, you must

accept what I tell you is the rule of

law, what must be proved to make out a

case. You can't depart from the law as

I give it to you, whether or not you

agree with it. Otherwise you would be

false to the oath that you took when you

accepted service on this jury and raised

your right hand and said that, so held

you God, you would well and truly try

this case on the evidence and on the

law.

A-84

The burden is on the plaintiff,

in a civil action such as this, to prove

every essential element of her claim by

a fair preponderance of the evidence

that you credit as truthful. If the

proof should fail to establish any

essential element of the plaintiff's

claim by a fair preponderance of the

evidence, then you are to find for the

defendant.

The defendant, when called

into court, has no burden to prove

anything. It has no burden to sustain,

with respect to the plaintiff's claim,

on the issue of liability. It is not

bound to prove anything. A defendant

who comes into court need not even

present any proof or any witnesses. It

is the plaintiff who must prove her case

by a fair preponderance of the credible

evidence.

A defendant may rest on the

inadequacy of the plaintiff's proof, if

any there be, on the failure to convince

a jury by a fair preponderance of the

credible evidence that the plaintiff's

claim is true.

To establish a preponderance

of the evidence means to prove that

something is more likely so than not so.

In other words, a preponderance of the

credible evidence in the case means such

evidence as when considered and compared

with that opposed to it has more con-

vincing force and produces in your minds

a belief that what is sought to be

proved is more likely true than not.

Now, judges, when they charge

a jury, sometimes explain this by an

apothecary scale, a scale that you find

in a drugstore. If the evidence in the

case, when weighed on one side, prepon-

derates, goes down, if the scale goes

A-86

down with the weight of it beyond the

middle line, and that evidence is

credited by you, that is a preponderance

of the credible evidence.

If, however, the evidence is

evenly balanced so that you can't decide

one way or the other its convincing

force, whether its convincing force is

greater than the inferences and con-

vincina force of the evidence on the

other side, then the case has not been

proved; it remains in balance.

And similarly, if the evidence

against the case weighs more heavily

than the evidence for the case, the case

has not been proved. So that it is only

when the evidence preponderates over the

evidence on the other side that the

plaintiff has established a claim.

In determining whether any

fact in issue has been proved by a

preponderance of the evidence in the

case, the jury may consider the testimony

of all witnesses, regardless of who may

have called them, and all the exhibits,

regardless of who may have produced them.

Mention has been made that a

gynecologist was not called. The

failure to call a witness who was

equally available to both sides may be

taken against both sides or not at

all.

There are, generally speaking,

two types of evidence from which a jury

may properly find the truth as to the

facts of a case. One is direct evidence,

such as the testimony of an alleged eye

witness, and the other is indirect, or

circumstantial, evidence, the proof of a

chain of circumstances pointing to the

existence or nonexistence of certain

facts.

As a general rule, the law

makes no distinction between direct and

A-88

circumstantial evidence. It simply

requires that the jury find the facts in

accordance with the preponderance of all

the evidence in the case, both direct

and circumstantial.

The attorneys have been

permitted by the Court and by the rules

to make opening statements and summations

to you. Under those circumstances, the

statements that they have made by way of

opening or by way of summations will not

be taken as evidence. It is argument.

That is all that is. However, the court

and the law do permit you to take the

arguments that they have proferred to

you and weiqh those arguments.

Likewise, the mere fact that

the plaintiff has filed a complaint

against the defendant is not evidence of

anything, and no inference may be drawn

by the filing of the complaint. The

complaint is merely a procedural device

A-89

by which a claim is placed before you.

It is the evidence and the law which

ultimately determine the merits and

sufficiency of the allegations of the

complaint.

You, aS jurors, are the

sole judges of the credibility, the

believability of the witnesses and the

weight their testimony deserves. You

may be guided by the appearance and

conduct of a witness or by the manner in

which the witness testifies or by the

character of the testimony given or by

evidence to the contrary of the testimony

given. You may disbelieve evidence,

whether or not it is directly contra-

dicted. You should carefully scrutinize

all the testimony given, the circum-

stances under which each witness was

called and has testified, and every

matter in evidence which tends to show

whether the witness is worthy of belief.

You will consider the uniform

admissions on the witness stand by any

witness that she has falsified and lied

when spoken to and what that means so

far as the testimony here, that the

contrary was the truth. You will

consider each witness' intelligence,

motive and state of mind and demeanor

and manner while on the witness stand.

You will consider the witness' ability

to observe the matters as to which he or

she has testified and whether the

witness impresses you as having an

accurate recollection of those matters.

You will also consider any relationship

each witness may bear to either side of

the case, the manner in which each

witness might be affected by the verdict

and the extent to which, if at all, each

witness is either supported or contra-

dicted by other evidence in the case.

Inconsistencies or discrepan-

cies in the testimony of a witness or

between the testimony of different

witnesses is not an unknown phenomenon

and it may or may not cause the jury

to discredit such testimony. Two or

more persons witnessing an incident

Or transaction may see and hear it

differently. An innocent misrecollec-

tion, like a failure of recollection, is

not an uncommon experience,

In weighing the effect of a

discrepancy, always consider whether it

pertains to a matter of importance on

the question you are deciding or on an

unimportant detail, and whether the

discrepancy results from innocent error

Or the rush of events or intentional

falsehood.

A witness may be discredited,

Or impeached, by contradictory evidence

Or by evidence that at some other time

the witness has said or done something

or has failed to say or do something

which is inconsistent with the witness’

present testimony. Aaqain, you must

appraise the nature of the discrepancy.

Does it pertain to a matter of importance

on the question you are deciding or some

trivial, unimportant or collateral

detail?

Recollections and recitals of

events and observations are likely to

vary from person to person in the

retelling, and such variance is some-

times a better indication of frankness

than a schooled version of events.

Sometimes it is also an indication of

untruthfulness.

If you believe any witness has

been impeached, and thus discredited, on

a material matter, it is your exclusive

province to give the testimony of that

witness such credibility, if any, as you

think it deserves. If a witness has

been shown knowingly to have testified

falsely concerning a material matter,

you have a right to distrust such

witness' testimony on other particulars,

and you may, if you wish, reject all the

testimony of that witness and give it

only such credibility as you may think

it deserves.

An interested witness is not

necessarily less credible than a dis-

interested witness. The fact that the

witness is interested in the outcome of

the case does not mean that the witness

has not told the truth, and it is for

you to determine from the witness'

demeanor on the stand and such other

tests as your experience dictates

whether or not the testimony has been

colored intentionally or unintentionally

by interest.

A-94

If you find that the plaintiff

is entitled to a verdict on her claims

against the defendant Catholic Home

Bureau, then you would have to consider

the element of damages. The fact that I

am about to instruct you on the measure

of damages should not be considered as

an indication of any view of mine as to

which party is entitled to your verdict

in this case. Instructions as to the

measure of damages are given only for

your guidance.

I don't know how you are going

to decide the question of liability. If

you have found that the defendant is not

liable to the plaintiff, that would end

your task and you need go no further and

you would report your verdict of no

liability. It is only because I don't

know what you will decide that I have to

give you the additional rules, which I

A-95

refer to as instructions on the law of

damages.

Again, the burden of proof on

the subject of damages is solely on the

plaintiff, the person who asserts the

claim. The damages claimed by the

plaintiff fall into two categories, one

known aS compensatory damages and the

other known aS punitive damages. These

are distinct claims that you would

consider separately. If you find that

the plantiff is not entitled to a

verdict, then you need not consider the

damage elements of the claims.

I am first going to give you

the elements which you may consider in

assessing any compensatory damages, if

you find that such damages should be

assessed. The basis is that you will

assess, if you find liability, the

plaintiff's damages at such an amount as

in your sound judgment and discretion

A-96

would fairly and honestly compensate the

plaintiff for injuries, if any, resulting

from and proximately caused by the

Gefendant's actions, if any, that were

deliberately intended to bring harm to

Anna.

There is no fixed rule by

which damages may be mathematically

computed or calculated. But there are

certain compensable elements that a jury

may take into consideration. These are,

still talking about compensatory

damages, the nature and extent of the

plaintiff's injuries, if any, whether

those injuries are permanent or

temporary, and any pain, suffering,

fright, mental anguish, physical

disfiaqurement, emotional distress,

humiliation, or mental distress, if any

have been shown.

You are not to award damages

for any injury or condition which the

A-97

plaintiff may have suffered or may

now be suffering unless it has been

established by a preponderance of the

evidence in the case that such injury or

condition was proximately caused by the

Catholic Home Bureau, that is, causally

connected with a fault of the defendant

by which the defendant intended harm to

come to Anna, or deliberate indifference

thereto.

In addittion to actual damages,

in a case such as this the law permits

the jury, under certain circumstances,

to award an injured person punitive and

exemplary damages, awarded in order

to punish a person found to be an

intentional wrongdoer for some extra-

ordinary misconduct, and to serve as an

example or warning to others not to

enaage in such conduct.

If the jury should find, from

a preponderance of the evidence in the

case, that the plaintiff is entitled to

a verdict for actual or compensatory

damages against the defendant, and

snould further find that the acts of the

defendant which were causally connected

with the actual injury or damage to the

plaintiff was maliciously or wantonly or

oppressively done, then the jury may, in

a separate award, if in the exercise of

discretion they unanimously choose to do

so, award such amount as the jury shall

unanimously agree to be proper as

punitive and exemplary damages.

Your duty is to consider the

issues in this case fairly and impar-

tially to both sides, without fear or

favor. Your function calls for an

exercise of common sense in the light

of your own judgment and lifetime

experiences.

To return a verdict, it must

be unanimous. If durina the progress

A-99

of your deliberations you desire to see

any of the exhibits, or indeed to hear

any of the testimony to be read, if

you will send out a note signed by

Mrs. Chapman, who will be the foreperson

of your jury, we will try to accommodate

those requests.

Please do not indicate to

anyone, not even to me, how you stand

unt.il you have arrived at a unanimous

verdict. And when you have, you may

send out a note to that effect.

I am going to take a moment to

talk to the lawyers so that they will

have an opportunity to call to my

attention anything which they think I

may have misspoken on or overlooked.

Then I'll come back to you. So, if you

will be good enough to relax, I'll talk

to them at this time on this side of the

bench.

A-100

(At the side bar)

THE COURT: I have carefully

considered each of the requests tc

charge in the latest version of the

plaintiff's requests and, to the degree

that I think it appropriate to integrate

the concepts, I have included them in

what I consider the appropriate charge.

And consequently, to the extent that I

have not charged either in the language

or in the substance of the charge as

Submitted by the plaintiff, the plaintiff

has an exception.

That will save you a lot of

time.

MR. LANSNER: All right.

THE COURT: Are there any

further requests?

MR. LANSNER: Yes (handing).

MR. LANSNER: Yes (handing).

A-101

I have nothing further to say

except to answer any questions the Court

may wish to address.

THE COURT: Thank you.

The plaintiff has submitted

proposed requests for instructions to

the jury, and Request No. 15 accurately

and correctly, in the first two sentences

thereof, establishes precisely what is

requisite here. The plaintiff asks the

Court to charge as follows:

Plaintiff must establish

that the defendant "knowingly

and intentionally" did the

acts or omissions which

plaintiff asserts violated her

rights. This means that

plaintiff must prove that the

defendant intended the acts or

failures to act and did them

deliberately and voluntarily.

There are many things that

plaintiff's counsel has argued in his

statement to the Court with ample

overstatement and, in some aspects,

understatement. One interesting matter

A-102

has to do with the report of Dr. de

Alvarado. The plaintiff's lawyer cor-

rectly stated that it was her opinion

that the child should be taken out of

the foster home, but he neglected to

state what that doctor recommended,

which in mature judgment and for suf-

ficient cause the Catholic Home Bureau

rejected, namely removal and placing

that girl in an institution.

42 USC Section 1983 establishes

a cause of action for deprivation,

under color of state law, of any right

protected by the Constitution or laws of

the United States for the express

purpose of enforcing the provisions of

the 14th Amendment. The statute covers

acts by all those who carry a badge of

authority of the state and represent it

in some capacity, whether they act in

accordance with their authority or

misuse it.

A-103

The only complaint that the

jury could consider is the one against

the Catholic Home Bureau. There is no

constitutional act in respect of the

initial placement. A child's right to

be free of injury, where the state or

agency is characterized as a tort

feasor, which means violating a civil

right, does not make out a federal court

case. It is not of constitutional

dimensions under the civil rights

Statutes. Paul v. Davis, 424 U.S. 693

(1976).

There is not contention of

acts or omissions in bad faith. No

scintilla of evidence thereof was

adduced, at all events. In this case,

it is the burden of the plaintiff to

show that the Catholic Home Bureau had

an intention to harm the girl or that

there was reckless and deliberate

indifference to known mistreatment

A-104

suffered by her. The agency must be

shown to have evidenced deliberate,

intentional indifference to serious

known misconduct of the foster parents.

To find against the Catholic

Home Bureau, a jury would have to say

that the evidence is such that the

injuries resulted from an official

attitude on the part of the Catholic

Home Bureau.

Negligent supervision is not

something on which a suit can be brought

in the federal courts under the Civil

Rights Acts, because the law is that

such neqligent supervision is not a

constitutional violation. There are

other places that handle that kind of a

complaint, the Family Courts and the

various state courts.

Negligent supervision is

not equated with deliberate neglect,

deliberately improper or deliberately

A-105

indifferent conduct, which calls for

knowledge and awareness of what is going

on. There is no evidence in this record

whatever of knowledge by Catholic Home

Bureau of a pattern of constitutionally

offense acts and failure to take remedial

steps. Indeed, the contrary is the

evidence in this record.

The first reports--and I am

not speaking of abstruse, unsubstantiated

speculations--of abuse reached the

agency on August 23, 1977, and that very

day the agency galvanized into action,

investigated, barred the father from the

foster home, and within days closed the

home and removed the children elsewhere.

The courtroom proof, from

every witness who testified, was that

Catholic Home Bureau was lied to by Anna

and her sister, was told by them that

everything was all right. They never

complained or revealed to anyone any

A-106

impropriety of the foster father, not to

the case workers, not to the foster

mother, not to the school teachers, not

to the priests, not to her sister who

resided with her, and not to any girl or

boy friend or anyone else.

The evidence was inadequate as

a matter of law of a constitutional

violation. This court is not in the

business of administering state created

duties or obligations. This case

falls hopelessly short of constituting

deliberate indifference to the supervi-

sion, living conditions, welfare,

treatment, or conduct of the foster

parents.

The Court of Appeals in

this circuit teaches that while juries

are entitled to latitude in drawing

inferences as to the existence of an

official policy, intention to harm

and deliberate indifference of an

A-107

agency--the standard on a directed

verdict on the judgment notwithstanding,

the verdict is a difficult one to

meet--there are limits to that latitude.

The thing that stands out

starkly in this record is that the

plaintiff and her sister are admitted

liars on whose word no one could rely

and who at all events put the Catholic

Home Bureau in a frame of mind other

than of apprehending impropriety. No

report of any misconduct was made to

anyone.

In this Court's view, no

reasonable person could find, in the

light of the evidence adduced at trial,

that a federal cause under the Civil

Rights Act was made out against the

Catholic Home Bureau. Any verdict for

the plaintiff could be reached only

through passion or prejudice and would

have to be set aside as unreasonable.

A-108

Nonetheless, I shall allow,

under a reserved decision on the motion

to dismiss, the parties to go to the

jury, to make their argument, but give

this indication so that it may not be

thought to be an afterthought, should

there be a verdict which the Court would

regard as thoroughly unjustified and

thoroughly improper.

So that the motion to dismiss

is at the present time held under a

reserved decision and the parties will

be allowed to sum up.

I think that, in view of the

extensive discussion in this case and

the reading of the records and the

essentially simple nature of what is

involved here, despite the prolix manner

in which it was presented, that counsel

should limit themselves to a reasonably

brief but nonetheless complete argument

to the jury, and I would think that

A-109

twenty minutes to a half hour for each

side would be ample for that purpose.

You may bring in the jury.

(Jury present)

THE COURT: Counsel for the

defendant may address the jury.

I'll give you an opportunity

to read what I didn't permit you to

read. You can make it as part of your

summation.

S71 Las be

sli WORKER SOUAL WORKER PLAINTIFE: SCLIAL WORK NATURE OF

TLEPHONE Court] visits SEEN AT Activ iTy OTHER

lated +o | AGEwcy OFFICE aAcrivity Activity

2eTER HOME Foste em trome |

|

iN, 22 |

Jan. 27

| Jan.28 re; tutoring

n. 29(Evelyn W.d | Few, s

Feb.26-letter from |

Mrs. S. |

| | March l-letter from

School

{March 4-letter to |

S's(Wong]

- jMarch 9 lre; tutoring

= March 30 W-853 to DSS sent | |

- | lApral 6 Letter to Teacher | |

| | April 6 {Letter to D'Andrea

|April 14 re: tutoring |

| April 21

| | | | |

oxi) 30(Wong re- |

cord) |

\May 13 re; tutoring

May 19

| May 21 (Wong record]| May 2° Anna'a annual Physical

ane 16 2 DOr. Salome

| June 29 letter from

Mrs.S

| July 20

| August 16 |

Sept. 30 cancel foster home |

Visit

Oct. 1 re; tutoring

| |

et — re: Tel Or. Salome

it. 14 ’

Nov, 22 le...) Nov. 26

Dec, 10 re; tutoring

References are to Caserecord of Anna Piniero

: , é TO

20CIAL WORKER | SOUAL WORKER PLAINTIFF SOCIAL WORK NATURE Of

GLEPHONE Co Visits ‘| Seen ar Keekes oe

aig +o AGENCy OFFICE ‘ cuptest sodiighiid

sT Hom FOsteR Home | | |

; :

Jan 21 letter to S's

an 24

| Jan. 27 |Case conference

eb. 2 |

| |Feb. 3 lre: tutoring

Feb. 22 | |

March 16 Psycho-Social sent |

. to clinic | |

Apr 1 l2(Evelyn W. |S's at agency |

| caserecord |

Apr .1 18 lletter to S's |

April 26 ew ew we

| | May 1 W-853 to DSS

May 10 | | *

ey May 10 Anna 6 Dr. Chu 8

' | |\May 16 \Anna & Dr. Mickans | | =

2 |May 22 \Psychological rec'd.|

| July 24 Annual Phyc}al

Dr. Salome |

Sept 8 | | s

Sept 12 |

Sept. 16 Sibling visit

det 2 |

| Oct. 11 |No.. 5 i's at foster parents

| social

' Nov 8[Wong record)

Nov, 16 | |

Nov. 20 | Nov, 27

Nov. 28 Re: tutoring : |

Dec. 1 | Dec. 8 |

dec. ll iDes. 13 conference re visit |

1973

SOCIAL WORKER SOUAL WORKER PLAINTIFE SCCIAL WORK NATURE oC r

TELEPHONE CoNTT] — isis SEEN AT pie ae OTHER

er 0 AGENLy OFFICE . seta i eksgepiald

FosTes HOME FOSsTe Rm tome |

Jan 12 |

Jan 20

Feb. 2 |

Feb, 23

Feb, 28 | |

‘March 12 | March 1 |W853 to DSS | March 22-Anna has physical 6

| eye exam

March 22 | }

March 23 conference

March 26 |

March 30

April 2 | April 2 tel. school

| Apress 5 Social worker at

school

jApril 5

|April 6 Social worker tel

eo |

- | | Anna's teacher

' |

< May 2 Social worker reviews :

| Anna's scores

May 4 | | | i

May 14 | |

May 18 | |May 21] \re: tutoring |

| May 22 |

|

| | | | |

\Oct. 1 | W853 to DSS

Oct. 16 Dental check-up

| Oct. 19 | Conference

Oct. 22 Annual Physjcal Dr.

| Salome

ct. 24 , Oct. 30 | |

ov. 13 |

OV. 19 | | Nov. 20

i|Dec. 8(Wong record)

| Dec. 12 conference

dec. 17

|

|

{ ‘ Paae 1

BL,

SOCIAL prenangson SOUAL WORKER PLAINTIFFS SCcIAL WORK NATURE Oc OTHER

TLEPHONE Courmer] Visits SEEN AT eaicigy

crivit ACTIVIT .

abet +e NGENCy OFFICE y y Activity

EFOsTes HOME Foste@ brome

Jan. 4

Jan. 14

Jan. 16 social worker at ‘

" Anna'a school to .

| speak with counse lof

Feb. 1

| Feb. 8

Feb. 14

Feb, 21 Feb. 27 S/w at school

oan : March 1 W853 to DSS

| : ‘ March __, Undated report to

Court

March 20 Social worker at

Anna'a school

March 25 Social worker and

S's in Court >

| April 3 -

| lApril 17 Social worker and . res

| | S's in Court

May 22 |

May 29 Social Worker to

| | School

| June 12 | ‘

July 22 |

July 31

Aug. 14 |

\ug. 19 |

- Auq 28 |

|

Page 2

“CAL WORKER SCUAL WORKER PLAINTIFE SCLIAL WORK | NATURE OF | OTHER

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} | |

| | | | |

Oct. 15 at |

| Nov. 4 S's at adoptive |

| Parents meeting |

=a | | | Nov. 5S Annual Phyciial

| | Dr. Salome

| | '

Nov. 7

| Nov. 12 |

| | |

| | |.

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SOCIAL WORKER

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Feb. 27

\ PLAINTIFE SOCIAL WORK NATURE OF OTHER

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|

Jan. 6 (2x)

Jan. 7

Jan. 7 Jan. 8 Maroney reads record :

Jan. 9 Dr. Lewis sees Anna \

| Jan. 9 conference

Jan, 10

Jan. 10 | Jan. 10 social worker calls

| Bureau of Child Guidance

Jan. 10 Social worker sets

| date for clinic eval.

5 Jan. 24 Anna tested by Or.

Lewis

Feb, 4

eb. 10 | }

“eb. 14 j

| | Feb. 17 memo for clinic apptment. >

Fem. 28 Feb. 18 Social worker goes -

| to Bur. of Child wn

| | Guidance

| Feb. 19 tel call wath School) |

|

Feb. 20 memo for conference | |

P Feb. 21 social worker speaks |

| to Ms. Gilson of |

| Bur. of Child Guid. |

| Feb. 24 Social worker sends :

letter to St.Vincents

for Hearing test 4

} Feb. 25 Social worker tel,

} | with St.Vincent

2b. 25

| Conference

2. oe

page 2

“OCIAL ag SOUAL WORKER PLAINTIFE SCLIAL WORK NATURE OF OTHER

SLEPH ONE CouTncT visits SEEN AT nese

crivit crTIVIT j

wit +o AGENLy OFFICE y ad y Activity

2OSTER HOME FosTeéRm rome

|

arch 3 March 3 tel. St.Vincent

arch 7

| ,

arch 11° | March 13 bean to Dr. deAlverddo

arch 19 March 19 March 19 | | Psychiatric Exam

_ March 19 Conference

arch 20 (2x) | Marth 20 memo

| March 21 memos

| March 24

oril 9 |

| Apral 10 Conference

April 10 | Memo

pril 11 | April lil | memo

|

| | April 14 | social worker speak |

o to truant officer

= | April 15 Social worker speak

- | | to school |:

| | Apral 16 Social worker speakd

| to school

|

oril 16 | |

orkrl 17 | | April 17 memo |

| j | }

| April 23 |Social worker speaks

| to St. Vincent

| April 23 Social worker speak |

| to Bur. of Child

| | Guidance : |

April 24 Social worker goes | ‘|

| to Bur.Child aes <x

| Apirl 25 | memo j

| | .

| | | April 28 |memo |

as

SOCIAL WORKER SOUAL WORKER PLAINTIFE SCLIAL WORK NATURE O€ eum

TELEPHONE CourneT Visits | SEEN AT / ActiVETy ACTIVITY a |

with ro NGENCy OFFICE Activity

FOSTER HOME FOSTER Home

| |

April 30 Social worker speaks

to St.Vincent's

May 7

May 9 | %

May 12 May 12 memo \

| | May 14 Social worker speaks

to Bur.Child Guidance

| ‘

May 14 Social worker goes

. + Stepmateiereented

May 14 | ; CUK. CHILD Guid.

| May 15 Social worker speaks

to Bur. Child Gui

| ane

| May 17 Anna exaningd

by Dr. John Davis, |MO

| of Bur. Child Guiddnce

| May 21 Social Worker speakjs

to Bur.Child Guidance ~

| m

| June 3 - " 3 =

June 5 | ~

June 12

| | June 16 W853 to DSS

| June 16 memo

| June 21 Anna has

| | eye examined

ousy. a | {Anna summer schoo

| Staten Island Academy)

|

Aug. 11 | | |

} | |

’ | Aug. 27 | | |

| Sept. 15 | Anna at St. Roch's Say

|

Sept. 23 ANnual Phyjsical

_—9 .

1995

OCIAL WORKER SOUAL WORKER PLAINTIFE | SIAL WORK NATURE OF aie

aoh hg scaaiiad _— ae | Activity AcTiVviTy Activir

og AGENLy OFFICE | iviry

r Hom FostTe Rm. rome

Oct. 22 | |

Oct. 30 |

Nov. 19 | | ‘

|

Dec. 10

A-118

THY

2 nei

POEIAL WORKER SOUAL WORKER PLAINTIFE SCLIAL WORK NATURE of oruce

GLEPHONE Co visits SEEN AT rear

3 Hom FOosTeGRm tome | —

Jan 27 |

March 31 Letter from S's att |

April 13 |

| |

May ll \May 4 Anna Eye exam |

|

| |

July 15 ° | |

July 39 memo

| Aug. 2 Eye exam |

Aug. 10 | memo

' |

Aug. 23 | |

' a

| |

Sept. 14 \Lynn Wong and Mr.S. |

| | seen by Dr. a ake | M.D,

| | |

Nov. 26

| letter from Mrs. S

|

|

|

\

|

| Dec,

|

Dr.

Salome

|

|

|

27 Annual Phys}cal

6li-V

a

ates

CIAL WORKER SOUAL WORKER PLAINTIFE SCLIAL WORK NATURE Of r

LEPH ONE CoumncT) visits SEEN AT Activ ITy sander OTHER

— ro NGENLy OFFICE v Activity

osTee Home FostTe Rm rome

———————S— | ; ee ee

| Jan, 16 Seen by Dr.|Hethan |.

for sore throat "

fever.

| Feb. 10 memo ‘

|

| March 18 memo

Cmemete, MARCH 22 |

March 22 Conterence Dr. Piana sees all

girls and M/m S

|

April 1

\

May 2 May 3 {W853 to DSS

May 6 |

May 23 (W853 to Court

| ' | |

|

)} July ll / memo re sumner

| school

|

' Aug ll ' |

o

= Aug 22

a Aug. 23

Aug. 24

; |