# Petition — Catholic Home Bureau v. Doe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 864

## Text

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.

A-12

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

A-13

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

A-14

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

A-19

(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
LEPHONE CouTncT) visits SEEN AT | activity acriviTy | niihon want
— +e | AGENCy OFFICE | | y
osTee HOME FostTegm Home | | |
} | |
| | | | |
Oct. 15 at |
| Nov. 4 S's at adoptive |
| Parents meeting |
=a | | | Nov. 5S Annual Phyciial
| | Dr. Salome
| | '
Nov. 7
| Nov. 12 |
| | |
| | |.
| |
| | |
|
| |
| | | |
|
| | | | |
| |
wT | | | |
i | | '
< | | |
| | |
| : |
‘ } | | |
| |
| | | | |
'
} |
| |
| | |
|
|
"tr | | | | |
@. 7 | |

i

147 >

~

SOCIAL WORKER

SOUAL WORKER

|

eb. 28(4x)

Feb. 27

\ PLAINTIFE SOCIAL WORK NATURE OF OTHER
wero CoumeT) VISITS SEEN AT Activ iTy AcriviTy Activir
+o NGENCy OFFICE ¥
FOSsTEZ HOME FOosteRm trome |
|
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
; |

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0177%3A1. Public record. Not legal advice.