Appendix — City of New York v. Tenenbaum
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 1998
(Argued: September 9, 1998 - Decided: October 13, 1999)
Docket Nos. 97-9488(L), 97-9554(XAP)
MARC TENENBAUM and MARY TENENBAUM, individually
and on behalf of SARAH TENENBAUM, an infant,
Plaintiffs-Appeliees- Cross-Appellants,
—V_.—
NAT WILLIAMS, individually and as a caseworker, Child
Welfare Administration, VERONICA JAMES, individually
and as a caseworker, Child Welfare Administration, DOBY
FLOWERS, individually and as Commissioner of Social
Services of the City of New York, and BROOKE TRENT,
individually and as Deputy Commissioner of Social
Services of the City of New York,
Defendants-C ross-Appellees,
NEW YORK CITy, |
Defendant-Appellant- Cross-Appellee,
MARVA LIVINGSTON, as Commissioner of Social Services of
the City of New York, CLAUDE MEYERS, as Deputy
Commissioner of Social Services of the City of New York,
Appellants-Cross-Appellees,
and NEW YORK CITy BOARD OF EDUCATION,
Defendant.
Al
~
—
Before:
MCLAUGHLIN, JACOBS and SACK,
| Circuit Judges.
Appeal and cross-appeal from a judgment of the United
States District Court for the Eastern District of New York
(Denis R. Hurley, Judge) in plaintiffs’ action against the
defendants under 42 U.S.C. § 1983 (i) awarding plaintiffs
damages on their claims against some of the defendants on
the grounds that (a) the plaintiffs’ and their daughter Sarah’s
procedural due-process rights were violated by the perfor-
mance of a medical examination on Sarah in connection with
child-abuse allegations against her father without the plain-
tiffs’ permission or court authorization, and (b) Sarah’s
Fourth Amendment right to be free from unreasonable
searches was violated by the same examination; and (ii)
granting defendants’ motion for Summary judgment as to,
inter alia, (a) plaintiffs’ claims that their and Sarah’s pro-
cedural due-process rights were violated by the removal of
Sarah from school for the purpose of conducting the medica]
€xamination, (b) plaintiffs’ claim that Sarah’s Fourth Amend-
ment right to be free from unreasonable seizures was violated
by her removal from school, (c) plaintiffs’ claims that their
and Sarah’s substantive due-process rights were violated by
Sarah’s removal from school, (d) plaintiffs’ claims under
State law, and (e) plaintiffs’ claims against the individual
defendants because all such claims were barred on the
grounds of qualified immunity. Plaintiffs also challenge the
district court’s award of damages as insufficient to com-
pensate them and Sarah for the constitutional violations they
suffered.
Ad
SEL SS ae
Affirmed in part, vacated in part, and remanded. Judge
Jacobs concurs in part and dissents in part in a separate
opinion.
CAROLYN A. KUBITSCHEK, Lansner &
Kubitschek, New York, NY (David J.
Lansner, Christopher S. Weddle, Charles
Park, legal assistant, on the brief), for
Appellees-Cross-Appellants.
ELLEN RAVITCH, Assistant Corporation Counsel
of the City of New York, New York, NY
(Jeffrey D. Friedlander, Acting Corporation
Counsel of the City of New York, Stephen J.
McGrath, Bruce Rosenbaum, of counsel), for
Appellants-Cross-Appellees and Defendant-
Appellant-Cross-Appellee.
Diane Redleaf, Lehrer & Redleaf, Chicago, IIl.,
for Amicus Curiae National Coalition for
Child Protection Reform.
SACK, Circuit Judge:
On Tuesday, January 9, 1990, at about noon, a caseworker
from the New York City Child Welfare Administration (the
“CWA”) removed five-year-old Sarah Tenenbaum from her
kindergarten class at P.S. 230 in Brooklyn, New York, pur-
Suant to the emergency removal provisions of New York
Social Services Law § 417! and New York Family Court Act
I Section 417 states, in pertinent part, that specified public officials “shall
take all appropriate measures to protect a child’s life and health including,
when appropriate, taking or keeping a child in protective custody without
A3
§ 1024,? without court order and without notifying or receiv-
ing authorization from either of her parents, Marc and Mary
Tenenbaum (the “Tenenbaums”). Sarah was taken to the
emergency room at Coney Island Hospital where a pediatri-
cian anda £ynecologist examined her for signs of possible
sexual abuse. When they found none, she was returned to her
parents. The case was abandoned as “unfounded.”
The Tenenbaums brought suit in the United States District
Court for the Eastern District of New York against, inter alia,
New York City (the “City”), the CWA, and CWA employees.
The City appeals from a money judgment against it in the
district court (Denis R. Hurley, Judge) based on the district
court’s finding that the medical examination performed with-
out either parental consent or court order deprived the Tenen-
baums and their daughter of procedural rights guaranteed by
the Due Process Clause of the Fourteenth Amendment, and
infringed Sarah’s right to be free from unreasonable searches
under the Fourth Amendment applied to the States through
the Fourteenth. The Tenenbaums, for themselves and their
daughter, cross-appeal from the judgment of the district court
insofar as it granted defendants’ motion for summary judg-
ment dismissing their claim that the defendants’ removal of
Sarah from school without their consent or court authoriza-
tion was a violation of their and Sarah’s procedural and
substantive rights under the Due Process Clause of the Four- |
teenth Amendment. They also appeal the court’s holding that
the consent of a parent or guardian if such person has reasonable cause to
believe that the circumstances or condition of the child are such that con-
tinuing in his or her place of residence _ . - presents an imminent danger
to the child’s life or health.” N.Y. Soc. Serv. Law § 417(1)(a) (McKinney
1999).
2 Section 1024 is substantially similar to § 417 but adds that, in order to
effect an emergency removal! without a court order, there must not be
enough time to apply for such court order. See N.Y. Fam. Ct. Act
§ 1024(a)(ii) (McKinney 1999).
Ae
age award, arguing that it is insufficient to compensate them
for the constitutional violations they suffered.
rights and awards damages therefor. We disagree with the
however, we vacate in part and remand only with respect to
the City. We affirm the district court’s award of damages,
Should the Tenenbaums prevail on the claims that we remand
for trial.
A5
Background
The facts underlying this appeal are largely undisputed.
Five-year-old Sarah Tenenbaum, a kindergartner at P.S. 230
in Brooklyn, was “developmentally delayed” and afflicted
with “elective mutism”—only rarely would she speak to oth-
ers outside of her home. In school, non-verbal or limited ver-
bal communication was therefore typical. Sarah’s teacher,
Mary Murphy, was in her third year as a teacher, her first as
_ a kindergarten teacher. Sarah communicated with Murphy by
showing her pictures she (Sarah) had drawn or by speaking in
one- or two-word sentences.
On Thursday, January 4, 1990, Sarah slept while her class
was being told a story and attendance was being taken. When
she awoke, she was crying. Murphy asked Sarah why; Sarah
did not respond. Murphy persisted, asking Sarah whether
anyone in the class had hurt her. Sarah shook her head “no.”
When Murphy asked whether someone at home had hurt her,
Sarah nodded “yes.” Then, according to Murphy, she “went
down the list of people that were in [Sarah’s] life. . . all of
which [Sarah] shook her head, no, to. When {Murphy] asked
[Sarah] if her father was hurting her, her eyes welled up in
tears and she shook her head, yes, and she started to really
cry.”
Later that day, Murphy talked to Sarah again and asked
Sarah to indicate on a doll she was holding where Sarah was
being hurt. Sarah pointed to the groin area of the doll. In
order to make sure she was not misunderstanding Sarah,
Murphy asked Sarah to indicate again where she was being
hurt and Sarah again pointed to the doil’s groin area. Murphy
did not report the incident that day.
During the following day, Friday, January 5, according to
Murphy, Sarah drew a picture of two figures. Murphy asked
A6
Sarah what was happening in the Picture and Sarah said
“Sarah and. . . Daddy kneeling, hurt,” and then fell silent.
Murphy reported Sarah ’s behavior to her superiors at PS.
Social Services Law.3 She also reported that Sarah often slept
A guidance counselor at P.S. 230 in turn reported the matter
by telephone to the New York State Department of Social]
Services’ Central Register of Child Abuse and Maltreatment
that day, also as required by law.
An operator at the State agency made a record of the coun-
selor’s cal] ona department “Form 2221”: “Sarah is speech
and language delayed. Sarah is unable to stay awake during
the day. Ch[ild] often naps off and on al] day. Ch[ild] is ner-
vous and withdrawn. Ch{ild] is afraid of fa[ther]. Fa[ther]
hurts her vaginal area at night.” The department telecopied
the Form 2221 to defendant Nat Williams, a supervisor in the
child protective unit of the CWA in Brooklyn. Williams
received it at about noon that day, Friday.
Sarah’s teacher, Murphy, about the allegations contained in
the Form 2221. James attempted to reach Murphy at the
school, but Murphy had left for the weekend.
teachers in public schools. That section also permits such persons who are
members of the staff “of a medical or other public or private institution,
school, facility or agency,” to report the suspected abuse to the Person in
Williams also told James to visit the Tenenbaums’ home
that evening to examine the child for marks and bruises, to
assure herself that Sarah’s living conditions were acceptable,
and to discuss with the Tenenbaums Sarah’s sleeping in
school and her delayed development. Williams issued explicit
instructions to James not to raise the issue of sexua] abuse.
That evening, James, accompanied by colleague Thomas
O’Connell, who was sent along by Williams in case any male
children might be involved, arrived unannounced at the
Tenenbaums’ home. James told the Tenenbaums that she and
O’Connell were investigating a report that Sarah was devel-
opmentally delayed and was sleeping in school. In accor-
dance with Williams’ instructions, they did not mention the
O’Connell, respectively, to inspect Sarah’s and her brother’s
partially uncovered bodies for marks or bruises. The case-
Tenenbaum, a plumber for the City school system, was home
during the evenings. The Tenenbaum home seemed to the
caseworkers to be neat and well-cared for.
There is a dispute about what the caseworkers told the
Such request and had not left a telephone number where she,
O’Connell, or their Supervisor could be reached. In any
event, not having been told about the sexual abuse charges,
the Tenenbaums did not know that Mr. Tenenbaum was sus-
pected of wrongdoing or that anyone thought that Sarah
might be in imminent danger of physical harm.
James and O’Connell left the Tenenbaum home, James
reported their observations to Williams by telephone, and the
NO one contacted it about the Tenenbaum Situation. Neither
did Williams, James, O’Conne]] or anyone else then or dur-
ing the week that followed try to reach Sarah’s doctors to dis-
cuss the Possibility of abuse. There is Similarly no indication
that anyone attempted to find teacher Murphy at her home or
elsewhere over the weekend to try to determine the nature
and extent of the evidence that Sarah had been abused.
On Monday, January 8, James Visited P.S. 230. She met
Murphy, who reiterated what had happened the week before.
AQ
expected from Mr. or Mrs. Tenenbaum. The call never came.
The Tenenbaums, as already noted, deny that they had ever
received any request to contact Williams. Neither did
Williams call the Tenenbaums even thou gh he knew how to
reach them. After James completed her report, Williams told
her to work on other cases for the remainder of the day.
Based on what he termed his “assessment of the Case
including Miss Murphy’s account” and the failure of the
Tenenbaums to contact him, Williams decided that on Tues-
day, the day after he received James’s report, he would have
Sarah removed from school in order to have her physically
examined “to rule out [the possibility of] sexual abuse.”4
James says that at her meeting with Williams on Monday she
was “instructed that [James] would have to take the child to
the hospital.” When asked why she did not remove Sarah
until the next day, James testified that she did not recall.
Williams testified that he did not decide unti] Tuesday morn-
ing to have Sarah removed from school. “I decided just to do
it on Tuesday.”
Although CWA lawyers were on staff at Williams’ and
James’ office, neither sought legal advice before removing
Sarah from school and subjecting her to the examination.
Neither Williams nor James made an attempt—indeed, no one
considered making an attempt—to obtain parental consent for
a physical] examination of Sarah as provided by § 1021 of the
New York Family Court Act.5 And no one considered seeking
‘ The defendants assert in their reply brief on appeal that Williams was
Justified in treating Sarah’s simation as an emergency by the end of the day
Monday because he thought the Tenenbanms had been told to telephone
him that day and “the Tenenbaums took the allegation of sex abuse so
lightly that they did not even call him” Bot, as Williams was of course
aware, the Tenenbaums knew nothing about the sexual abuse allegation
‘becanse he had given the order that they not be told about it.
> Section 1021 of the New York Family Court Act provides that an autho-
rized official may temporarily remove a child who is abused or neglected
A110.
RAE RE PARE UR meg Neonat
Sabra
lished. See also N.Y. Fam. Ct. Act § 1022 (McKinney 1999),
Practice Commentaries, Douglas J. Besharov at 10 (stating
that it is “common to take emergency protective action with-
Out prior court review” in New York City in contrast with
procedures used in other Parts of the State). In the district
court, the defendants “stipulated that the removal of Sarah
were done pursuant to CWA policy.” Tenenbaum vy. Williams,
91-CV-0037 (DRH), Memorandum and Order at 2-3
(E.D.N.Y. Oct. 21, 1997). And at oral argument on this
appeal, counsel for the defendants, when asked whether the
City condoned the defendants’ actions, responded “Yes, and
they do it routinely. That is the policy.”
oh gata an Order directing the temporary removal of a child from the
place where he or she is residing. See N.Y. Fam. Ct. Act § 1022
7 Counsel for the defendants on this appeal conceded at oral argument
that “Perhaps, in this case, a court order if sought could have been obtained
on that day.”
All
Sc ee
Following Williams’ instruction, James went to P.S. 230 on
Tuesday, January 9 at about noon, without court order or
parental consent, and effected an “emergency” removal of
Sarah for the purpose of determining whether she had been
sexually abused. The school, as a matter of policy, con-
sented.
James, by herself, took Sarah to the emergency room at
Coney Island Hospital where, after several hours’ delay,
Sarah was examined by both a pediatrician and a gynecolo-
gist. The gynecological examination included the insertion of
a cotton swab in Sarah’s vagina and anus. No evidence of
sexual abuse was discovered, although the hospital report
stated that it could not be ruled out.
While James and Sarah wete at the hospital, Williams con-
tacted Mrs. Tenenbaum and told her that Sarah had been
taken from school. Mrs. Tenenbaum telephoned her husband
and both parents went to Williams’ office. When they
arrived, Williams confronted Mr. Tenenbaum for the first
time with the sexual abuse charge. He heatedly denied it.
After Sarah’s physical examination was complete, James
brought Sarah to the CWA office, where she was returned to
her parents sometime between 7:30 and 8:30 that evening.
Williams told the Tenenbaums that they could take Sarah
home because no evidence of sexual abuse had been dis-
covered. No further action was taken on the charge. Williams
ultimately marked Sarah’s case “unfounded.”
In January 1991, the Tenenbaums filed a complaint in the
United States District Court for the Eastern District of New
York pursuant to 42 U.S.C. § 1983 against Williams, James
8 Section 2.2 of the Regulation of the Chancellor relating to Reports of
Suspected Child Abuse and Maltreatment then in effect read in part: “The
school must permit Child Protective Services workers to take children into
their custody, upon their presentation of either a court order or a written
Statement from the Office of Special Services for Children.”
A12
vidual capacities and on behalf of Sarah.
The defendants moved for summary judgment and the
Tenenbaums cross-moved for partial summary judgment. On
meritorious. Even if they were, the district court held, the
individual defendants were entitled to qualified immunity.
The court found as a matter of law, however, that the judi-
Cially unauthorized medical examination violated the Tenen-
baums’ and Sarah’s Procedural due-process rights and
Sarah’s Fourth Amendment right to be free from unreason-
able searches. Although the individual] defendants were enti-
tled to qualified immunity on this claim, the City of New
York was subject to suit. The court further found that there
were disputed factual issues surrounding a separate physical
search claim against the Board of Education, a claim the
Tenenbaums nonetheless subsequently withdrew. The court
dismissed all of the Tenenbaums’ state-law claims and denied
the Tenenbaums’ partial summary judgment motion.
907 F. Supp. 606, 618 (E.D.N_Y. 1995) (“Tenenbaum IT’).
The City then conceded that the actions of Williams, James
and the CWA, which formed the basis of the viable claims,
were taken pursuant to City policy and that the City was
therefore responsible for them. Tenenbaum vy. Williams, 91-
CV-0037 (DRH), Memorandum and Order at 2-3 (E.D.N.Y.
Oct. 21, 1997) (“Tenenbaum III’). The court held a damages
trial on March 10 and 18, 1997. It awarded damages in the
amount of $15,000 to Sarah and $1.00 each to Mr. and Mrs.
Tenenbaum. Jd. at 7-12. These cross-appeals followed.
Discussion
I. Procedural Due-Process Claims
The Due Process Clause of the Fourteenth Amendment
provides that no State shall “deprive any person of life, lib-
erty, OF property, without due process of law.” The Tenen-
baums claim that they have a liberty interest in the care,
management and custody of their daughter Sarah, and that
her removal] from school without their consent and without
court authorization deprived them of that interest without due
process of law. The district court disagreed, finding that rea-
sonable grounds existed for Sarah’s emergency removal.
Tenenbaum I, 862 F. Supp. at 969-72. The court also found
that even had the individual defendants violated plaintiffs’
due-process rights, those defendants were entitled to quali-
fied immunity because officials “of reasonable competence
could disagree on whether [there was] probable cause” for
Sarah’s removal. Jd. at 972 (internal quotation marks and
Citation omitted).
The Tenenbaums claim a similar liberty interest with
respect to their daughter's subjection to a medical examina-
ion. The district court agreed. In contrast to its conclusion
as to Sarah’s removal, the court held that the defendants’
Al4
|
actions violated the Tenenbaums’ and Sarah’s procedural
due-process rights as a matter of law. It reasoned that what-
ever emergency may have existed at the time of Sarah’s
removal from school, it had abated by the time Sarah was at
the hospital. Because there was moO emergency, absent
parental consent judicial authorization was required by the
Due Process Clause. It had not been obtained. Jd. at 972-73.
The court nevertheless found that the individual defendants
were entitled to qualified immunity on this claim too, and
granted summary judgment to them on that basis. Jd. at 973.
The City, to which the qualified immunity defense does not
apply, was held potentially liable on this claim and the court
denied summary judgment as to it. See id. After the district
court denied its motion for reargument, the City conceded
that the actions of the CWA caseworkers were taken pursuant
to City policy. See Tenenbaum IH], at 2-3. A damages trial
followed and the court awarded the plaintiffs and Sarah dam-
ages on this claim. See Tenenbaum II, at 7-12.
On appeal, the Tenenbaums contend that the district court
erred when it granted summary judgment for the defendants
on the Tenenbaums’ claim that, aside from the medical exam-
ination, Sarah’s removal from school violated their and
Sarah's due-process rights. They also challenge the district
court's finding that qualified immunity shields the individual
defendants from liability. For its part, the City asserts that the
district court erred in holding that the medical examination
violated the plaintiffs’ due-process rights. The Tenenbaums
argue that this aspect of the court’s decision was correct, but
insist that the individual defendants are not entitled to qual-
ified immunity as to this claim.
This Court reviews the district court’s grant of summary
judgment de novo, see Maguire v. Citicorp Retail Servs., Inc.,
147 F.3d 232, 235 (2d Cir. 1998), and we construe the evi-
dence in the light most favorable to the non-moving party.
A15
See Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). We will affirm the decision only if the record indi-
cates that “there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a mat-
ter of law.” Fed. R. Civ. P. 56(c). “A dispute regarding
a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.’ Stuart v. American Cyanamid Co., 158 F.3d 622, 626
(2d Cir. 1998) (quoting Anderson, 477 U.S. at 248), cert.
denied, 119 S. Ct. 1456 (1999).
A. Sarah’s Removal
1. Constitutional Violation
“Choices about marriage, family life, and the upbringing of
children are among associational rights [the Supreme] Court
has ranked as ‘of basic importance in our society,’ . . . rights
sheltered by the Fourteenth Amendment against the State’s
unwarranted usurpation, disregard, or disrespect.” M.L.B. v.
S.L.J., 519 U.S. 102, 116 (1996) (internal citation Omitted).
Parents therefore have a constitutionally protected liberty
interest in the care, custody and management of their chil-
dren. See Santosky v. Kramer, 455 U.S. 745, 753-54 (1982);
Hurlman y. Rice, 927 F.2d 74, 79 (2d Cir. 1991); van Emrick
v. Chemung County Dep’t of Soc. Servs., 911 F.2d 863, 867
(2d Cir. 1990); see also Stanley v. Illinois, 405 U.S. 645, 649-
52 (1972) (rights to conceive and raise one’s children have
been deemed “essential” and “basic civil rights of man”);
Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (the cus-
tody, care and nurture of the child reside first with the par-
ents); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (liberty
guaranteed by the Fourteenth Amendment includes the right
to establish a home and bring up children); Duchesne v.
Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) (recognizing the
A16
At the same time, however, the State has a Profound inter-
est in the welfare of the child, Particularly his or her being
Sheltered from abuse. In “ ‘emergency’ circumstances,”
821 F.2d at 922). “[T]he mere ‘Possibility’ of danger” is not
enough. Jd. at 81. If it Were, officers would always be justi-
fied in Seizing a child without a court order whenever there
was suspicion that the child might have been abused.
See id. The law thus seeks to Strike a balance among the
Hollingsworth y. Hill, 110 F.3d 733, 739 (10th Cir. 1997);
Robison, 821 F.2d at 920.
According to the district court, because consent was not
obtained? and court Proceedings not employed, “[t]he Pivotal
a
9 Joval and sats 6o not argue thatthe school’s rotine consent to Serah’
question” is whether James’ removal of Sarah from P.S. 230
was an “appropriate response to a legitimately perceived
emergency.” Tenenbaum I, 862 F. Supp. at 970. The district
court found that Williams, who ordered Sarah’s removal, had
probable cause, i.e., an objectively reasonable basis, to
believe emergency circumstances existed because “the sub-
Stance of what the child communicated to Murphy... . is
essentially uncontroverted, viz. that Sarah’s father hurt her
through contact with her Vaginal area at night.” Jd. This was
enough to satisfy the district court that as a matter of law
there were emergency circumstances that permitted Sarah’s
removal from school for a physical examination without a
court order. See id. at 971. We disagree.
While “there is a sufficient emergency to warrant officials’
taking [a child into] custody without a prior hearing if [he or
she] is immediately threatened with harm,” Robison, 82]
F.2d at 922 (citation omitted), the converse is also true. If the
v. Acton, 515 U.S. 646, 654 (1995), the Supreme Court has rejected the
nouon that public schools generally “act in loco parentis in their dealings
with students: (that) their authority is that of the parent. . . . Such rea-
soning is in tension with contemporary reality and the teachings of th[e]
Court.” New Jersey v. T.L.O, 469 U.S. 325, 336 (1985). If it were other-
wise, a public school could in effect consent to its own infringements of
Students’ Fourth and Fourteenth Amendment rights thereby rendering these
rights meaningless as against the school. The Supreme Court has held to
the contrary that a public school is an agency of the State subject to con-
absent a court order, an emergency, or parental consent.”).
The extent to which a private person or institution with temporary care.
taking responsibilities for a child may effectively consent to a government
Official’s removal of the child and her subsequent physical examination
is mot in issue in this case. We intimate no views on the question.
Ais
danger to the child is not so imminent that there is reasonably
sufficient time to seek prior judicial authorization, ex Parte
Or otherwise,!° for the Child’s removal, then the circum-
out judicial Process, pre-seizure Procedural due process for
the parents and their child evaporates.
The decision to remove Sarah from schoo] was made as
early as Monday, January 8. She was not taken from schoo]
erly instructed jury could conclude that at the time the case-
workers decided to remove Sarah, there was reasonably
any time Sarah should have been removed for her protection
and there was not then reasonably sufficient time to seek pre-
deprivation judicial authorization, there would have been, as
a matter of law, no violation of either the Tenenbaums’ or
Sarah’s due-process rights. A jury could conclude, however,
that in the case of Sarah Tenenbaum that time never came.
When child abuse is asserted, the child’s welfare pre-
dominates over other interests of her parents and the State.
But “we must be sensitive to the fact that society’s interest in
the protection of children is, indeed, multifaceted, composed
not only with concerns about the safety and welfare of chil-
dren from the community’s point of view, but also with the
child’s psychological well-being, autonomy, and relationship
to the family.” Franz v, Lytle, 997 F.2d 784, 792-93 (10th Cir.
_ 1993). And while the paramount importance of the child’s
well-being can be effectuated only by rendering State offi-
Cials secure in the knowledge that they can act quickly and
decisively in urgent situations and that the law will protect
them when they do, there is a critical difference between nec-
essary latitude and infinite license. As the Supreme Court
Stated in Stanley v. Illinois:
The establishment of prompt efficacious procedures to
achieve legitimate state ends is a proper state interest
worthy of cognizance in constitutional adjudication. But
the Constitution recognizes higher values than speed and
efficiency.
405 U.S. at 656. And as this case may demonstrate, if officers
of the State come to believe that they can never be ques-
tioned in a court of law for the manner in which they remove
a child from her ordinary care, custody and Management, it
is inevitable that they will eventually inflict harm on the par-
ents, the State, and the child.
A20
EIS
2. Qualified Immunity
the defendants was inappropriate “vis-a-vis Sarah’s removal,
the [individual] defendants] would still be entitled to such
I, 862 F. Supp. at 972. We agree.
exist” a parent can “not be deprived” of the custody of his or
her child “without due process, generally in the form of a
predeprivation hearing.” Huriman, 927 F.2d at 79 (citing
Robison, 821 F.2d at 921). But not until teday have we
specifically held that where there is reasonable time consis-
tent with the safety of the child to obtain a judicial order, the
“emergency” removal of a child is unwarranted. We cannot
Say that this principle was clearly enough articulated in or
implied by our case law as of 1990 to require the defendants
to answer in damages for their failure to abide by it at that
time.
The district court, in a thoughtful and thorough opinion,
moreover, held that the individual defendants’ actions in
removing Sarah complied with procedural due-process
requirements. While such a conclusion would not entirely
preclude us from finding that the individual defendants’
actions violated plaintiffs’ “clearly established right,” the
district court’s determination in 1994 that no such right
existed helps persuade us that in early 1990 the right was not
“clearly established.” We conclude that the district court cor-
rectly determined that the individual defendants were pro-
tected by qualified immunity.
Because we now hold that it is unconstitutional for state
officials to effect a child’s removal on an “emergency” basis
where there is reasonable time safely to obtain judicial autho-
rization consistent with the child’s safety, caseworkers can no
longer claim, as did the defendants here, that they are
immune from liability for such actions because the law is not
“clearly established.” But there remains substantial protec-
tion for caseworkers under the second prong of the qualified
immunity test, so long as it is “objectively reasonable [for
them] to believe that [their] acts [do] not violate these clearly
established rights.” Young, 160 F.3d at 903. “The objective
reasonableness test is met—and the defendant is entitled to
A22
TNE
immunity—if ‘Officers of reasonable competence could dis-
agree’ on the legality of the defendant’s actions.” Lennon y.
Briggs, 475 U.S. 335, 34] (1986)). We continue to recognize
[P]rotective S€Tvices caseworkers [must] choose between
difficult alternatives . - . . If they err in interrupting
Provide ample protection for caseworkers, enabling them to
fulfill their crucia] duties safely and effectively. When sued,
nity doctrine.
3. Liability of the City
While the individual] defendants are entitled to qualified
immunity, the City is not. See Owen v. City of Independence,
445 U.S. 622, 657 (1980); Ferran v. Town of Nassau, 11 F.3d
21, 23 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994). In -—
A23
order for a court to impose liability on a municipal defendant
under § 1983, the plaintiff must identify a municipal “policy”
or “custom” from which the alleged injury arose. See Monell
v. Department of Social Servs., 436 U.S. 658, 694 (1978).
This “ensures that a municipality is held liable only for those
deprivations resulting from the decisions of its duly consti-
tuted legislative body or of those officials whose acts may
fairly be said to be those of the municipality.” Board of the
County Comm’rs v. Brown, 520 U.S. 397, 403-04 (1997).
The City conceded in the district court that both “the
removal of Sarah and her subsequent examination” were
accomplished pursuant to City policy. Tenenbaum III, at 2-3.
This concession was reconfirmed at oral argument on this
appeal. If this concession is binding on the City and after
trial on remand Sarah’s removal is found to have been a vio-
lation of the plaintiffs’ procedural due-process rights, then
the City will be liable for that violation. If for any reason the
district court holds that the City is not bound by this con-
cession, however, in order to prevail on their claim that the
City is liable for the procedural due-process infringements by
the individual defendants based on Sarah’s removal, the
plaintiffs will also be required to show on remand that the
removal was effected pursuant to a City policy or custom.
B. The Medical Examination
1. Constitutional Violation
The district court found that Sarah’s subjection to a med-
_ ical examination by both a pediatrician and a gynecologist at
the request of CWA caseworker James violated Sarah’s and
her parents’ procedural due-process rights but concluded that
the individual defendants were qualifiedly immune from lia-
bility. The City was not shielded from liability, however,
because it conceded that the €xamination was conducted
A24
the present case is distinguishable. We are unpersuaded.
the x-rays were taken, the child was placed in the temporary
custody of the Department of Social Services: this Custodial
arrangement, effected pursuant to @ court order, was not
based on anything the X-rays revealed but rather was made
because of the caseworkers’ fear that the child could be in
danger if returned home. The investigation ended without any
A25
finding of responsibility for the injury and the child was
returned to her parents. See id. at 865.
In determining that the administration of the X-rays with-
out the parents’ consent or a court order violated the plain-
tiffs’ procedural due-process rights, this Court concluded that
the x-rays were not “medically indicated.” See id. at 867. The
purpose of the x-rays “was not to provide medical treatment
to the child, but to provide investigative assistance to the
caseworker.” Jd. Based on this determination, we announced
that |
the Constitution assures parents that, in the absence of
parental consent, x-rays of their child may not be under-
taken for investigative purposes at the behest of state
officials unless a judicial officer has determined, upon
notice to the parents and an Opportunity to be heard, that
- rounds for such an examination exist and that the
administration of the procedure is reasonable under al]
the circumstances.
Id.
Relying on this holding, the court below found that:
Sarah was subjected to intrusive bodily examinations by
two strangers, in a strange location, in the absence of a
parent or other reassuring figure. . . [and accordingly]
plaintiffs have established, as a matter of law, that their
procedural] due process rights were violated by the man-
ner in which Sarah was Subjected to a medical exami-
nation on January 9, 1990.
Tenenbaum I, 862 F. Supp. at 973. The district court reiter-
ated this holding on the City’s motion for reconsideration.
See Tenenbaum II, 907 F-Supp. at 617-18. The City contends
that van Emrik is distinguishable from this case because (1)
the medical procedure administered in van Emrik (long-bone
A26
X-rays) was potentially harmful to the child, while the med-
ical procedure in the present case was not, and (2) the x-rays
in van Emrik were administered purely for investigative pur-
poses whereas the examination of Sarah’s vaginal area was
conducted for the Purpose of detecting and heating injuries
that may have been caused by alleged sexual abuse. We dis-
agree on both counts.
First, with respect to the contention that van Emrik’s hold-
ing does not apply because Sarah was subjected to a gyne-
cological exam rather than long-bone x-rays, we agree with
the district court that “(while the child in van Emrik faced
- the possibility of physical injury, Sarah, almost certainly, did,
in fact, experience Psychological injury on January 9, 1990.”
862 F. Supp. at 973. That likelihood surely could have been
anticipated by both Williams and James. Moreover, van
Emrik does not confine its holding to x-rays, but instead
Speaks in broad terms of “medical procedures in aid of child
abuse investigations.” van Emrik, 911 F.2d at 868.
Second, with respect to the City’s argument that Sarah’s
physical examination was medically indicated, the evidence
discloses that when Sarah was brought to the emergency
room at Coney Island Hospital, doctors were told that she
was a suspected victim of sexual abuse by her father. It is
undisputed that the Synecological exam that ensued was
undertaken for the Purpose of determining whether such
abuse had occurred. Williams unambiguously so testified.
While the purpose was investigative, the method by which
the doctors conducted the investigation was, of course, to
examine Sarah for injuries consistent with abuse.
During the examination of Sarah “to rule out [the possi-
bility of] sexual abuse,” injuries might have been found, and
if so we would surely expect them to have been treated. But
that possibility did not turn an investigative examination into
A27
one that is “medically indicated” and designed for treatment.
Cf. Chayo v. Kaladjian, 844 F. Supp. 163, 169 (S._.D.N.Y.
1994) (interpreting van Emrik to permit unauthorized X-rays
that were ordered by a pediatric resident for purposes of
diagnosis, not investigation, where child had visible bruise
on head); Schwimmer y. Kaladjian, 988 F. Supp. 631, 641
(S.D.N.Y. 1997) (doctor-ordered X-rays where child was cov-
ered with ecchymotic lesions were medically indicated, not
merely investigative), aff’d, 164 F.3d 619 (2d Cir. 1998)
(unpublished table decision).
We also agree with the district court that if Sarah had ever
been in imminent danger, she was not by the time she was
taken to the hospital in the custody of the CWA. The case-
workers were required under van Emrik either to notify the
Tenenbaums that Sarah was about to undergo a medical pro-
cedure and obtain the approval of either of them or to obtain
judicial authorization. They did neither. See Tenenbaum I,
862 F. Supp. at 972.
2. Qualified Immunity
We also agree with the district court that the individual
defendants were nonetheless entitled to qualified immunity.
Not until van Emrik was decided in August 1990 was the law
Clear that subjecting a child to invasive investigatory medi-
cal examination in the course of an abuse investigation
requires a court order absent parental consent. The events in
Tenenbaum occurred more than seven months prior thereto.
The individual defendants did not, therefore, violate rights
that were “clearly established” at the time. See section 1.A.2.,
supra.
Il. Substantive Due-Process Claims
The Tenenbaums also contend that Sarah’s temporary
removal for the purpose of subjecting her to a medical exam-
A28
ination violated their and Sarah’s substantive due-pro-cess
rights." The district court granted the defendants’ motion for
969. We agree with the district court’s conclusion, although
we affirm its grant of summary judgment as to the claim
brought on Sarah’s behalf on different grounds.
Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opin-
ion of Rehnquist, C.J -) (quoting Graham y. Connor, 490 U.S.
386, 395 (1989)). “Substantive due process analysis is there-
fore inappropriate in this case. . . if [the] claim is ‘covered
by” the Fourth Amendment.” County of Sacramento v. Lewis,
523 U.S. 833, 843 (1998). As discussed below, Sarah’s
removal and her examination constituted a seizure and
claim on Sarah’s behalf therefore “must be analyzed under
the standard appropriate to [the Fourth Amendment], not
under the rubric of substantive due process.” United States v.
Lanier, 520 U.S. 259, 272 n.7 (1997). We affirm the dis-
missal of the substantive due-process claim brought on
Sarah’s behalf on this ground.
The Tenenbaums do not have—or at least no longer
allege—cognizable Fourth Amendment claims based on
Sarah’s examination and removal. See note 13, infra. It is
therefore appropriate to analyze whether their claims are
redressible as substantive due-process violations. Because we
tind that they are not, we affirm the district court’s grant of
Summary judgment on those claims.
The Tenenbaums and their family have, in general terms,
a substantive right under the Due Process Clause “to remain
together without the coercive interference of the awesome
power of the state.” Duchesne, 566 F.2d at 825. We could
agree with the Tenenbaums that this right was violated by the
defendants in this case only if we were to conclude that the
removal of Sarah for several hours under these circumstances
would have been prohibited by the Constitution even had the
Tenenbaums been given all the procedural protections to
which they were entitled. See Daniels y. Williams, 474 U.S.
327, 331 (1986) (substantive due-process rights bar “certain
government actions regardless of the fairness of the proce-
dures used to implement them.”). The substantive rights aris-
ing out of the Due Process Clause are not so broad.
“[T]he touchstone of due process is protection of the indi-
vidual against arbitrary action of government.” County of
Sacramento, 523 U.S. at 845 (internal quotation marks and
citation omitted). Substantive due-process rights guard
against the government’s “exercise of power without any rea-
sonable justification in the service of a legitimate govern-
mental objective.” Jd. at 846 (citation omitted). “[OJnly the
most egregious official conduct can be said to be ‘arbitrary
in the constitutional sense’ ” and therefore unconstitutional.
A30
Thus, in Joyner y, Dumpson, 712 F.2d 770 (2d Cir. 1983),
we analyzed whether New York’s mandatory Custody
Here, Sarah was taken from P'S. 230 at about noon on Jan-
uary 9, 1990 and was returned to her parents hours later. The
The Tenenbaums aver that the duration of an imposed sep-
aration has no bearing on the substantive due-process anal-
ysis. The cases on which they rely, however, are inapposite.
In United States v. Langer, 958 F.2d 522 (2d Cir. 1992), for
example, we determined that police detention even for ten to
fifteen minutes was “constitutionally significant” for pur-
poses of 18 U.S.C. § 242. See id. at 524. The right implicated
in Langer was the Fourth Amendment right to be free from
unreasonable seizures and in that context we recognized that
“even a brief seizure is a serious intrusion upon the sanctity
of the person.” Jd. (internal quotation marks omitted). Sim-
ilarly, in Davis v. Mississippi, 394 U.S. 721 (1969), the
Supreme Court found that the detention of the defendant at
police headquarters, even for a short period of time, violated
the Fourth Amendment where there was no probable cause
for arrest. The Tenenbaums ask us to extrapolate from Langer
and Davis a rule that the separation of child and parent for a
short period of time, no matter what procedural protections
accompany it, constitutes a violation of the right to family
integrity. There is no basis for us to do so. It does not follow
from the principle that brief seizures of people may be unrea-
sonable and therefore violate the Fourth Amendment that
brief removals of children from their parents to protect them
from abuse are “without any reasonable justification in the
service of a legitimate governmental objective,” County of
Sacramento, 523 U.S. at 846, under the Due Process Clause.
The district court properly granted summary judgment for all
the defendants on this claim.
Ill. Fourth Amendment Claims
The Tenenbaums assert on behalf of Sarah! that both her
removal and her subjection to the medical examination also
3 “Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.” Alderman v. United
A32
violated her Tight to be free from unlawful Searches and
Seizures under the Fourth Amendment, because the CWA
caseworkers did not have a Warrant or its equivalent autho-
holding with Fespect to these claims mirrored its procedural
due-process determinations: First, the caseworkers had prob-
was conducted pursuant to City policy, Tenenbaum III at
2-3, and that it was therefore legally responsible for the indi-
vidual defendants’ actions with respect thereto. Tenenbaum
I, 862 F. Supp. at 978.
A33
On appeal, the Tenenbaums assert on Sarah’s behalf that
contrary to the district court’s holding, Sarah’s removal, like
her examination, was not justified by emergency circum-
stances and was therefore a violation of her Fourth Amend-
ment rights. They also assert that the individual defendants
are not entitled to qualified immunity. The City contends that
the district court properly decided the removal aspect of the
Tenenbaums’ Fourth Amendment claim but that the medica]
€xamination portion also should have been dismissed because
the examination was medically indicated and therefore con-
stitutional. As with our determination of the procedural due-
process claim, we find the record facts insufficient to sustain
the district court’s holding that as a matter of law Sarah’s
emergency removal was proper. But we agree with the dis-
trict court that the individual defendants are entitled to qual-
ified immunity. We also agree with the district court that the
physical examination performed on Sarah without parenta]
consent or judicial authorization violated Sarah’s Fourth
Amendment rights but that qualified immunity shields the
individual defendants from liability on that claim as well.
A. Sarah’s Removal
1. Constitutional Violation
Sarah was taken by a government official from her school
to a hospital where she was required to remain for several
hours before being examined and returned to her parents. We
agree with the district court that this constituted a “seizure”
under the Fourth Amendment. Cf. Graham, 490 U.S. at 395
n.10 (“A ‘seizure’, triggering the Fourth Amendment’s pro-
tections occurs . . . when government actors have, ‘by
means of physical force or show of authority . . . in some
way restrained the liberty of a citizen.’ ”); Gardiner, 50 F.3d
at 155 (an individual is seized if, under the circumstances
A34
presented, “a reasonable Person would have believed he was
not free to leave.”) (internal quotation marks and citations
omitted).
The Fourth Amendment Protects “the people” from “unrea-
sonable searches and seizures,” also providing that “no War-
rants shall issue, but upon probable cause, Supported by Oath
or affirmation, and Particularly describing. . . the persons
or things to be seized.” (emphasis added). In the context of
a seizure of a child by the State during an abuse investiga-
tion, as the district court recognized, see Tenenbaum I, 862
F. Supp. at 974 n.7, a court order is the equivalent of a war-
rant. But the caseworkers here neither sought nor obtained
such an order. So whether the equivalent of a warrant was
properly obtained and, indeed, whether or in what sense
probable cause would be Tequired to be demonstrated in order
to obtain one are not issues on this appeal.
The term “probable cause” has also been imported from the
warrant clause of the Fourth Amendment and applied to its
“unreasonable searches and seizures” clause. The term “prob-
able cause” is thus not only the explicit Fourth Amendment
requirement for obtaining a warrant, but also descriptive of
what seizures are “reasonable” when, as here, no warrant has
been obtained. See generally, Akhil Reed Amar, Fourth
Amendment First Principles, 107 Harv. L. Rev. 757 (1994).
This issue arises most commonly where there is a war-
rantless arrest.
In general, probable cause to arrest exists when the offi-
cers have knowledge or reasonably trustworthy infor-
mation of facts and circumstances that are sufficient to
Warrant a person of reasonable caution in the belief that
14 The Fourth Amendment's search and seizure provisions are applicable
to the defendants through the Fourteenth Amendment’s due Process
Clause. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961).
A35
ESS 'S = rr
the person to be arrested has committed or is comunitting
a crime. .
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations
omitted); cf. T.L.O., 469 U.S. at 340 (“probable cause” that
there has been a violation of the law is ordinarily required
even for searches that can be permissibly carried out without
@ warrant). Probable cause is a flexible term. There is no
“rigid demand that Specific ‘tests’ be satisfied.” Iilinois vy.
Gates, 462 U.S. 213, 231 (1983). “In dealing with probable
Cause, . . . as the very name implies, we deal with proba-
bilities. These are not technical; they are the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.” Jd. (internal
quotation marks and citation omitted). The district court
found that probable cause in this Sense was required for the
removal of Sarah from her School, and that it existed suffi-
ciently to justify the defendants’ actions. Tenenbaum I, 862
F. Supp. at 977. |
There is a threshold issue, as the district court recognized.
Does the ordinary probable-cause standard applicable to,
among others, law enforcement officials making warrantless
arrests also apply to caseworkers seizing children without
prior court authorization? Although all agencies of govern-
ment are governed by the unreasonable searches and seizures
provision of the Fourth Amendment, there are some agencies
outside the realm of criminal law enforcement where gov-
ernment officials have “special needs beyond the normal
need for law enforcement {that] make the warrant and prob-
able-cause requirement impracticable.” O’Connor v. Ortega,
480 U.S. 709, 720 ( 1987) (plurality Opinion) (internal quo-
tation marks and citation omitted); see also id. at 732 (Scalia,
officer to follow ordinary law-enforcement requirements
under the Fourth Amendment would impose intolerable bur-
A36
Cir. 1989) (applying ordinary Probable-cause Standard to
inspection of child’s nude body by caseworker and police
officer); Donald v. Polk County, 836 F.2d 376, 384 (7th Cir.
1988) (applying probable-cause standard to caseworkers’
removal of child from parents’ custody). But see Darryl H. y.
Coler, 801 F.2d 893, 901-02 (7th Cir. 1986) (neither warrant
A37
But we refrain from deciding categorically, as did the dis-
trict court, that the removal of a child of whom abuse is
Suspected is not a “special needs” Situation. There may be
circumstances in which the law of watrant and probable
cause established in the criminal] Setting does not work effec-
tively in the child removal or child examination context.15
This is not such a Case.
or refer directly to the “unreasonable. . - Seizure” language
of the Foarth Amendment, as we must in “special needs” cir-
cumstances. If “probable cause” was required, and the infor-
15 wroteon not decide, as the district court did, for example. whether
caseworkers ever have “special needs” that would permit them to base a
removal of a child on information from an anonymous source contrary to
ordinary probable Cause jurisprudence. See Tenenbaum I, 862 F. Supp. at
975-76.
A38
out first obtaining a court order. See Weyant, 101 F.3d at 852.
If a more general “special needs” ““Teasonableness” test
Son of reasonable caution in the belief that Sarah was subject
to the danger of abuse if not removed from school before
court authorization could reasonably have been obtained, her
removal was reasonable also.
Finally and in any event, it is core Fourth Amendment doc-
trine that a seizure without consent or 4 Warrant is a “rea-
sonable” seizure if it js justified by “exigent circumstances,”
States v. Medina, 944 F.2q 60, 68 (2d Cir. 1991), cert. denied,
503 U.S. 949 (1992); Good, 891 F2q at 1093-94 (discussing
“exigent circumstances” Principles applied to officer’s
A39
before court authorization can reasonably be obtained, the
“exigent circumstances” doctrine too permits removal of the
child without a warrant equivalent and without parental con-
sent. See, e.g., Huriman, 927 F.2d at 80.
Whatever Fourth Amendment analysis is employed, then,
it results in a test for present purposes similar to the proce-
dural due-process standard. If information possessed by
Williams or James warranted a person of reasonable caution
in the belief that Sarah was subject to the danger of abuse if
not removed from school before court authorization reason-
ably could be obtained, Sarah’s removal complied with
Fourth Amendment requirements despite the absence of a
warrant equivalent because probable cause, reasonable cause,
and exigent circumstances sufficient to justify it existed. A
jury could reasonably conclude that the case here was oth-
erwise. We reverse the district court’s grant of summary
judgment against Sarah on her Fourth Amendment removal
claim.
2. Qualified Immunity
Qualified immunity protects the individual defendants
from liability under the Fourth Amendment for Sarah’s
removal. The application of Fourth Amendment standards in
the child-abuse context was not clear at the time of defen-
dants’ acts in 1990. Our analysis here is similar to our anal-
ysis of the individual defendants’ immunity from the
procedural due-process claims. See section 1.A.2, supra.
There was no “clearly established” law under the Fourth
Amendment from which the individual defendants could have
concluded that they did not have “probable cause” to remove
Sarah from P.S. 230 on an emergency basis. In this analysis,
as in the parallel due-process assessment, it is particularly
difficult to conclude that the individual defendants’ behav-
ior was wrongful under “clearly established” Fourth Amend-
A40
ment principles in light of the district court’s carefully con-
sidered decision that it did not violate the Fourth Amendment
at all, even though we ultimately disagree with that conclu-
sion. We affirm the district court as to the individual defen-
dants’ qualified immunity.
We emphasize again the importance of the availability of
qualified immunity where child welfare workers are seeking
to protect children from abuse. If caseworkers “ ‘of reason-
able competence could disagree’ on the legality of [a] defen-
dant’s actions” their behavior is protected. Lennon, 66 F.3d
at 420 (quoting Malley, 475 U.S. at 341).
3. Liability of the City.
For the reasons set forth in section I.A.3., above, in con-
nection with liability for due-process violations, the City
must be liable for Sarah’s removal as a violation of her
Fourth Amendment rights if the removal constituted such a
violation and was effected in conformity with a “policy” or
“custom” of the City. As we have indicated, the City appar-
ently conceded the latter. See Tenenbaum III, at 2-3. If it has
not, the Tenenbaums on Sarah’s behalf will be required to
establish both aspects of her Fourth Amendment removal
Case at trial.
B. The Medical Examination
1. Constitutional Violation
The district court found that Sarah’s physical ex..uination
violated her Fourth Amendment right to be free from war-
rantless searches. Tenenbaum I, 862 F. Supp. at 978. The City
was held liable for the actions of the individual defendants
because it conceded that the examination was pursuant to
City policy. See Tenenbaum IIT, at 2-3. We agree. For the rea-
Sons discussed in the procedural due-process portion of this
A41
opinion, section I.B.1., supra, we conclude that the medical
. ¢Xamination was “undertaken at the initiative of a state offi-
_cial [and] serve[d) primarily an investigative function; [and]
in such circumstances, Fourth Amendment and bodily
integrity interests of the child are implicated.” van Emrik,
911 F.2d at 867; see also Good, 891 F.2d at 1092-93: Darryl
H., 801 F.2d at 907; Schwimmer, 988 F. Supp. at 644.
Further, as discussed in connection with the Fourth
Amendment implications of Sarah’s removal from school, we
find that the Fourth Amendme\*’s reasonable or probable
cause and exigent circumstances doctrines apply to searches
and seizures made in the course of child abuse investigations.
Accordingly, in the absence of a warrant equivalent, in order
for the examination to have been constitutional, reasonable
or probable cause or exigent circumstances justifying an
emergency examination must have existed at the time the
examination was performed. As the district court found, they
did not. Sarah could not have been in danger from her father
while she was being held by the CWA. There was ample time
to obtain a court order. The district court’s conclusion that
there was an insufficient justification for performing the
examination on an emergency basis is not clearly erroneous
and we therefore affirm its judgment as to this claim.
2. Qualified Immunity
Again, the individual defendants were rightly held by the
district court to be immune. The only case that can be said to
have “clearly established” the impropriety of Sarah’s exam-
ination, albeit on due process not Fourth Amendment
grounds, was van Emrick. It was not decided until] months
after the events in this case transpired. Whatever van Emrik
“clearly established” therefore could not have guided the
behavior of the individual defendants here and they are enti-
tled to qualified immunity, as the district court held.
A42
~ IV. Other Grounds for Appeal
A. State-law Claims
New York law Provides absolute immunity for state and
local employees when they perform discretionary, as opposed
tO ministerial, functions. See, e.g., Tango vy. Tulevech, 61
N.Y.2d 34, 40 (1983). This protection extends to the State
ground that James’ and Williams’ actions were discretionary
and that absolute immunity was appropriate. Tenenbaum J,
862 F. Supp. at 981. We agree and affirm on this portion of
the cross-appeal.
B. Damages
The Tenenbaums assert that the district court’s award of
$15,000 to Sarah and $1.00 each to Mr. and Mrs. Tenenbaum
A43
Vv. Claims Against the Board of Education
We make explicit what we think is implicit in the forego-
ing discussion. Public schools have a relationship with their
students that is markedly different from the relationship
between most governmental agencies, including the CWA,
and the children with whom they deal. Constitutional claims
based on searches or seizures by public school officials relat-
ing to public school students therefore call for an analysis
under the Fourth and Fourteenth Amendments that is differ-
ent from that set forth in this opinion. See, e.g., Vernonia
Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (routine drug
testing of public school] student athletes does not violate the
Fourth Amendment); T.L.0., 469 U.S. 325 (1985) (Fourth
Amendment “probable cause” requirement inapplicable to
warrantless search by public school assistant vice principal
of student’s purse). Inasmuch as the plaintiffs have not pur-
sued claims against the Board of Education or public school
officials, we have no occasion to discuss this issue in further
detail or to apply that analysis.
Conclusion
In sum, we find that, with respect to Sarah’s removal from
school by the CWA, the district court erred in concluding as
a matter of law that the Tenenbaums’ and Sarah’s procedural
due-process rights and Sarah’s Fourth Amendment rights
were not infringed as a matter of law, and remand those
claims to the district court for further proceedings. We con-
clude, however, that (1) the district court was correct in
deciding that the defendants did not violate the Tenenbaums’
or Sarah’s substantive due-process rights as a matter of law;
(2) with respect to Sarah’s physical examination, the district
court. was correct in deciding that the Tenenbaums’ and
Sarah’s procedural due-process rights and Sarah’s Fourth
A44
Amendment rights were infringed; and (3) with respect to al]
the assertions of constitutional violations, the district court
was Correct in deciding that the individual defendants are
entitled to qualified immunity. We also affirm the district
court’s assessment of damages with Tespect to Sarah’s phys-
ical examination and its dismissal of the Tenenbaums’ state-
law claims.
JACOBS, Circuit Judge, concurring in part, and dissenting in
part:
I concur generally in the portions of the majority opinion
that affirm the dismissal of the Tenenbaums’ substantive due
process and state law claims. I respectfully dissent from the
remainder of the opinion, however, because I see no consti-
tutional violation, and would not reach the question of qual-
ified immunity or the Tenenbaums’ challenge to the district
court’s award of damages.
A. Removal of Sarah
1. Definition of “Emergency”
We have previously held that an emergency is an exigent
Situation in which a child welfare worker may take custody
of a child without parental consent and without a court order.
Thus the majority recites: “in “emergency circumstances,’ a
child may be taken into custody by a responsible State offi-
Cial without court authorization or parental consent.” Major-
ity Opinion at 7027-7028 (quoting Huriman vy. Rice, 927 F.2d
74, 80 (2d Cir. 1991)). This standard has been applied again
and again. See Gottlieb y. County of Orange, 84 F.3d 5] l,
520 (2d Cir. 1996) (“It is established . . . that government
A45
officials may remove a child from his or her parents’ custody
before a hearing is held where there is an objectively rea-
sonable basis for believing that a threat to the child’s health
or safety is imminent.”); Cecere v. City of New York, 967 F.2d
826, 829 (2d Cir. 1992); Robison v. Via, 821 F.2d 913, 922
(2d Cir. 1987) (“[I}t is sufficient if the officials have been
presented with evidence of serious ongoing abuse and there-
fore have reason to fear imminent recurrence.”); Duchesne v.
Sugarman, 566 F.2d 817, 825-26 (2d Cir. 1977).
The majority opinion announces a new and incompatible
principle: that there is no such emergency, notwithstanding
the exigency, if there is or may be time to obtain a court
order. None of our cases has held that the availability of the
emergency-removal exception depends on whether there is
time to obtain judicial pre-authorization. Each of our prior
cases requires only that an emergency exist, a fact that is
determined by reference to the child’s peril, not the case
worker's schedule or the court’s calendar. This is a sensible
formulation, and one that keeps the child welfare worker
focused on what matters first in these cases, the child’s pre-
carious welfare. “When a child’s safety is threatened, that is
justification enough for action first and hearing afterward.”
Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983),
quoted in Robison, 821 F.2d at 921.
The error of the majority opinion is to recast a.child-wel-
fare emergency in terms of a procedural emergency, i.e.,
whether the danger to the child is so pressing that no court
order is feasible. Thus the majoritty opinion requires a child
welfare worker, at peril of personal liability, to make the
additional determination as to whether there is time enough
to secure court authorization. An already-difficult calculus is
thus complicated by a new and comfusing set of standards and
risks. Cf. Wilkinson v. Russell, 182 F.3d 89, 105 (2d Cir.
1999) (“[C]Jourts must be especially sensitive to the pres-
A46
Surized circumstances routinely confronting case workers,
circumstances in which decisions between difficult alterna-
tives often need to be made on the basis of limited or con-
flicting information.” (internal quotation Marks omitted)).
The circumstances of this case objectively justified Invo-
Cation of the emergency exception. At the time the child wel-
garten each day. I would therefore affirm summary judgment
for the defendants on the removal claim.
2. Applying the Majority’s New Rule
Under the rule announced by the Majority, however, a jury
would decide if there was time for the child welfare worker
to obtain a court order. Was there time in this case? How long
does it take? The City concedes that it can be done in a day:
was there a day? The majority’s treatment of these questions
demonstrates that in terms of legal risk the only safe course
now open for a social worker or the City will be to obtain a
court order in every case. To illustrate: Supervisor Williams
made the decision to remove Sarah for examination on Tues-
day morning, January 9, and she was removed before the
noon dismissal of her kindergarten Class; yet the majority
opinion holds that there was sufficient time to obtain a court
order because the decision could have been made “as early as
Monday,” and a court order could have been procured in a
day. See Majority Opinion at 7029.
A47
The opportunity to seek a court order, as supposed in the
majority opinion, is premised on the implied criticism that
the decision to remove Sarah should have been made sooner
or faster. Thus the majority criticizes Williams for awaiting
a call from the Tenenbaums (a call the Tenenbaums aver they
were never told to make), even after the record on which he
acted was otherwise complete. But Supervisor Williams did
not get the report on the interviews with Sarah and the
teacher until after they were conducted sometime on Monday,
and made his decision on Tuesday morning.!
There is therefore no basis for finding a delay of any
appreciable number of workday hours. Similarly, the major-
ity opinion criticizes inaction over the weekend, and suggests
that efforts could have been made to find Sarah’s teacher
before Monday.” Thus in this case, where the child welfare
workers acted with dispatch, having taken action no more
than a few business hours after receipt of a full report, every-
one involved has been criticized (and—but for immunity in
this case only—made subject to liability) both for delay and
for haste. That is why the only safe decision a child-welfare
worker can make (from a liability standpoint) is to get a court
order regardless of risk to the child.
The error of the majority opinion is partly traceable to the
City’s admission that it routinely effects emergency removals
and rarely seeks judicial pre-authorization. Such a policy
might be called into question in a case in which no objective
1 The majority quotes testimony of caseworker James that Williams told
her on Monday that she “would have to take [Sarah] to the hospital,” and
deduces from that testimony that Williams made the decision on Monday.
But James’ categorical testimony on this point establishes that she did not
act on Monday because the decision could only be made by Williams, ie.,
the decision and order to act had not happened.
2 __ “Although the CWA maintains an emergency children’s services unit
that is on cal] nights and weekends, no one contacted it about the Tenen-
baum situation.” Majority Opinion at 7019.
AaB
emergency existed. But this is not such a case, nor is it a
‘Class action; the only issue before the Court is whether the
child welfare workers were justified in bypassing judicial
Stitutional violation, see Monell y, Dep’t of Soc. Servs., 436
U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978), not on whether
there was a constitutional violation in the first place.
The majority opinion, however, treats the City’s policy as
circumstantial evidence from which a jury could infer a lack
of emergency in this Case, i.e., that the decision to remove
Sarah was triggered by compliance with the City’s policy
rather than by the judgment of the child welfare workers.
nique, and into the tough choices that caseworkers must
make and that we should not.
A49
The addition of this subjective element is contrary to this
Court’s precedents, all of which have assessed due process
challenges to emergency removals in terms that are Strictly
objective. See, e.g., Wilkinson, 182 F.3d at 104 (“An inves-
tigation passes constitutional muster provided simply that
case workers have a reasonable basis for their findings of
abuse.” (internal quotation marks omitted) (emphasis
added)); Gottlieb, 84 F.3d at 520 (“It is established. . . that
government officials may remove a ¢hild from his or her par-
ents’ custody before a hearing is held where there is an
objectively reasonable basis for believing that a threat to the
child’s health or safety is imminent.” (emphasis added));
Cecere, 967 F.2d at 829 (“[T]he only issue before us is
whether the assertion of custodial authority by [the defen-
dant] was objectively reasonable.” (emphasis added)); Robi-
son, 821 F.2d at 922 (“The belief that the danger was of
emergency proportions was likewise objectively reasonable.”
(emphasis added)); see Chayo v. Kaladjian, 844 F. Supp. 163,
169 (S.D.N.Y. 1994) (“[I]t is this Court’s task to focus on the
objective legal reasonableness of the defendants’ actions,
rather than the defendants’ Subjective state of mind.” (inter-
nal quotation marks and citation omitted)).3
3. The Danger of the Majority’s New Rule
One harm of the Majority opinion will be to make summary
judgment largely unattainable in due process and Fourth
Amendment cases brought by parents challenging emergency
removals. Ordinarily, a judge would have little trouble ascer-
taining as a matter of law that the child welfare worker faced
an emergency, objectively considered. (This case, in my
3 Some of these cases addressed qualified immunity, rather than the
under}ying constitutional claim. As we have recently noted, however, the
cases in this area typically collapse the two inquiries, so the qualified
immunity cases are directly relevant to this discussion. See Wilkinson, 182
A50
emergencies are delayed, reviewed and reconsidered, or stuck
in a superior’s in-box. And even a child welfare worker over-
burdened with real emergencies is a human being who might
80 to lunch, take a Personal day, go home on time, or spend
weekends at home.
to raise a material question as to whether the exigency fore-
A51
protection is considered necessary as against the parents
themselves” (internal quotation marks Omitted)). The job of
the child welfare worker requires a delicate balancing of
risks. Already, there are incentives to err on the side of
excessive caution rather than excessive action. See John C.
Jeffries, Jr., In Praise of the Eleventh Amendment and Section
1983, 84 Va. L. Rev. 47, 74-78 (1998). The majority opinion
reinforces that tendency, which will be bad news for abused
children.
Although the majority opinion finds that the individual]
defendants in this case are qualifiedly immune from dam-
ages, the issuance of the holding in this appeal means (inter
alia) that qualified immunity in similar situations may no
longer be available in this Circuit. Every time a child welfare
worker has reason to Suspect child abuse, she will have to
consider (i) whether there is reason to believe the child is in
imminent danger (which until now has been al] that was
required) and (ii) whether there is time to get to court and
obtain a court order (the majority’s new requirement) as wel]
as (iii) whether a court or jury will second-guess that deci-
Sion on the basis that more efficient decision-making would
have afforded sufficient time to obtain the court order. In
terms of litigation, individual liability and damages, an error
on the side of removal is risky, while an error on the other
side is safe. See DeShaney vy. Winnebago County Dep't of Soc.
Servs., 489 U.S. 189, 201-02, 109 S. Ct. 998, 1006-07 (1989)
(no § 1983 liability for state defendants’ failure to remove
child from abusive Situation). The incentive will be to allow
some number of children—their constitutional rights pre-
served—to return home to a predatory adult.‘
York’s statute governing “preliminary” removal orders. See Majority Opin-
ton at.7021-7022 & n.6 (citing N.Y. Fam. Ct. Act $ 1022). Although such
A52
B. Physical Examination of Sarah
The majority is on stronger precedential] ground in sections
1.B. and III.B., which address the physical €xXamination of
fracture was diagnosed. See id. at 864. Suspicious that the
baby-sitter had caused the injury, the parents agreed with
hospital personne] that the case should be reported to the
State’s child abuse “hot line.” See id. at 864-65.
When the child was about to be discharged, the assigned
case worker asked the attending physician to perform “long-
bone x-rays.” Jd. at 865. The doctor demurred because of the
an voing at be obtained ex parte, the officer seeking it must make a noUce
showing, ie., either that “the parent or other person legally responsible”
ep tid is “absent” or thatthe parent refused to consent to me hein,
temporary removal. See N.Y. Fam. Ct. Act § 1022(a); see also id § 1023;
(finding § 1022 order i y defective” and therefore 2 “nullity”
when child protection workers “failed to ask [parents] to consent to a tem-
porary removal of the child”).
is in objective danger of harm. Cf. Robison, $21 F.2d at 923 (“Federal
Of proweienal standards rather than state statutes define the requirement,
of procedural due Process.”).
A53
radiation risk, and so advised the case worker. See id. The
case worker prevailed on the doctor, however, insisting that
she needed “to know if there were other fractures that had
gone undetected and had healed.” Jd.
In a fact-specific opinion, the van Emrik court emphasized
that the x-rays in that case “were not medically indicated”
and that the doctor had initially opposed them. Id. at 867.
“The x-rays were not sought to facilitate diagnosis or treat-
ment. . . . but to provide investigative assistance to the
caseworker.” Jd. The court concluded that parents’ liberty
interest in the “care, custody, and management of their child”
was especially “significant” when an examination “serve[s]
primarily an investigative function.” Jd. In such cases, the
Court held, it is improper to perform the examination with- ©
out a judicial finding of justification and reasonableness.
The district court here found that “the gynecological exam-
ination of Sarah—like the examination of the child in van
Emrik—was not conducted ‘to provide medical treatment to
the child, but to provide investigative assistance to the case-
worker.’ ” Tenenbaum v. Williams, 907 F. Supp. 606, 618
(E.D.N.Y. 1995) (quoting van Emrik, 911 F.2d at 867). The
sole evidence on this point is the testimony of defendant Nat
Williams to the effect that Sarah was examined to detect sex-
ual abuse. The district court construed this testimony (which
is set out in the margin‘) as a concession that the examination
5 * “[Mily decision was that [Sarah] should be removed from the school
and taken to Coney Island Hospital, specifically to be examined to
rule out sexual abuse.”
. © [¥]Jou removed or had Sarah removed because you wanted to
have a medical examination done to determine whether or not she
had been sexually abused; is that correct?
A: That is correct-”
a “| was doing [the exam] to determine whether or not the child had
been sexually abused.”
A54
was “purely investigatory,” as van Emrik used that term. The
district court thus read the word “investigatory” as a term of
art suggesting (to lawyers) a police or criminal investigation.
However, the district court (as well as the majority opinion)
fail to appreciate that medical diagnostics is also “investi-
gatory”—in the sense that the physician investigates whether |
the patient would benefit from treatment.
In van Emrick, there was no question that the examination
was conducted exclusively to further the forensic investiga-
tion: the case worker was seeking evidence of healed frac-
tures, and the procedure was medically harmful (in the
doctor’s view). The holding of van Emrik therefore extends
no further than instances in which medical justification is
lacking. The case should not be read to bar physical exami-
nations that serve a medical purpose, even if a law enforce-
ment purpose is served as well.
No doubt, the physical examination of Sarah Tenenbaum
had its forensic uses. But it was also investigatory in the
additional sense that signs of sexual abuse would have served
important diagnostic purposes: a five-year-old girl who has
been sexually abused by an adult male (a) may need imme-
diate medical care; and (b) may need to be kept out of an
environment in which she would be exposed to further med-
ical and psychological injury.
These cases being necessarily quite fact-specific I believe
that, notwithstanding the holding in this case, the door stands
open for the City to prove in other cases, or after adoption of
new guidelines, that the investigatory purpose of the Jenen-
baum-style examination is chiefly diagnostic, and designed
to ascertain whether the child is in need of medical treatment
and protection from further injury.
The majority notes that “if Sarah had ever been in immi-
nent danger,” she was no longer in danger while in the cus-
A55
tody of the child welfare workers. They therefore had time to
seek judicial] authorization for the examination. See Major-
ity Opinion at 7038-7039, 7051. Of course, in another portion
of the opinion (in which I concur), we affirm dismissal of the
plaintiffs’ substantive due process claim on the ground that
the “temporary separation” of Sarah and her parents “was not
severe enough” to constitute a violation of substantive due
process. See Majority Opinion at 7042. These two rulings
will creete a dilemma for the child welfare worker who has
removed a child and sees a need for a medical examination.
She might await judicial authorization, which may require
overnight detention, with concomitant delays sufficient to
support a substantive due process claim. Or she might go
ahead with the examination, in order to return the child home
as soon as possible, and run the risk of procedural due pro-
cess and Fourth Amendment liability.
+ *x *
The influence of this opinion is potentially far-reaching. ©
The Court creates a new procedural requirement that burdens,
punishes, and thereby marginally inhibits decisive action to
protect children from people in their households.
A56
720—10-18-99 + USCA—80004 FY90
RECORD PRESS, INC., 157 Chambers St., N.Y. 10007 (212) 619-4949
Marc TENENBAUM and Mary Tenenbaum, individually
-and on behalf of Sarah Tenenbaum, an infant, Plaintiffs,
V.
Nat WILLIAMS, individually and as caseworker, Child
Welfare Administration, Veronica James, individually and
as caseworker, Child Welfare Administration, Doby
Flowers, individually, Marva Livingston Hammons,’ as
Commissioner of Social Services of the City of New York,
Brooke Trent, individually, Claude Meyers,* as Deputy
Commissioner of Social Services of the City of New York,
City of New York, and New York City Board of
Education, Defendants.
No. 91-CV-0037 (DRH)
United States District Court,
E.D. New York,
Hauppauge Division.
862 F. Supp. 962; 1994 U.S. Dist. LEXIS 14320
Sept. 30, 1994
Lansner & Kubitschek by Carolyn A. Kubitschek and
David J. Lansner, New York City, for Plaintiffs.
* Defendants Hammons and Meyers have replaced defendants Flowers
and Trent as Commissioner and Deputy Commissioner of Social
Services of the City of New York. Accordingly, while Flowers and
Trent remain defendants in their individual capacities, Hammons and
Meyers are, hereby, substituted as defendants with respect to plaintiffs’
claims against Flowers and Trent in their official capacities. Fed. R.
Civ. P. 25(d(1). See Hafer v. Melo, 502 U.S. 21 (1991).
-A57-
—————————————eeeeeeeeeeeoereeeee oe
Paul A. Crotty, New York City Corporation Counsel by
Bruce Rosenbaum, New York City, for Defendants.
MEMORANDUM AND ORDER
HURLEY, District Judge
Defendants move for summary judgment pursuant to
Federal Rule of Civil Procedure 56(b); plaintiffs cross-
move for partial summary judgment pursuant to Federal
Rule of Civil Procedure 56(a). ;
Defendants’ motion is denied in part and granted in part,
plaintiffs’ cross-motion is denied.
BACKGROUND
In September 1989, plaintiffs Marc and Mary Tenenbaum -
("the Tenenbaums") enrolled their daughter Sarah in
kindergarten at P.S. 230 in Brooklyn. Sarah suffers from
"elective mutism," meaning that she does not speak to
people outside of her home.
At P.S. 230, Sarah often fell asleep and on occasion
would cry in the morning in class, according to her teacher,
Mary Murphy. (Murphy Dep. at 17-18.) At first, Sarah did
not speak to Murphy. Over time, however, Sarah grew
comfortable with her, and would show Murphy pictures
and speak one- or two-word sentences to her. (Murphy
Dep. at 21.)
On January 4, 1990 and January 5, 1990, defendants
allege that Sarah communicated to Murphy in words and
gestures that her father sexually abused her. On one
occasion when Sarah began crying, Murphy asked her if
anyone was hurting her and identified a series of people in
-A58-
her life to which she "shook her head no." However, when
her father's name was mentioned in the litany of
individuals, Sarah's eyes filled "up in tears and she shook
her head, yes, and she started to really cry." (Murphy Dep.
at 23.) Sarah is said to have pointed to the groin area of one
of the dolls in the play area of her classroom when asked by
Murphy where her father hurt her. (Murphy Dep. at 24-26.)
Defendants also allege, inter alia, that Sarah drew a picture
of two figures and said to Murphy that one of the figures
was her father and that he "kneeled" and "hurt" her, and
that she was the other figure, and then she stopped talking.
(Murphy Dep. at 27.)
As required by Sections 413 and 415 of the New York
Social Services Law, Murphy reported what Sarah had
done and said to her superiors at P.S. 230. An official at the
school, Susan Raiten, in turn reported the matter to the New
York State Department of Social Services' ("the State
DSS's") Central Register of Child Abuse and Maltreatment
by telephone in the morning of Friday, January 5, 1990.
(Raiten Dep. at 13.) An operator at the State DSS recorded
the call on a DSS Form 2221 ("2221 Report"). The 2221
Report stated, "Sarah is speech and language delayed.
Sarah is unable to stay awake during the day. Ch[ild] often
naps off and on all day. Ch[ild] is nervous and withdrawn.
Ch{ild] is afraid of fa[ther]. Fa[ther] hurts her vaginal area
at night."
As required by state law, the State DSS forwarded the
2221 Report to defendant Nat Williams, a supervisor in the
child protective unit of the New York City Child Welfare
Administration ("the CWA") Brooklyn field office.
Williams received the report on the day it was made,
Friday, January 5, 1990, and on the same day assigned the
case to defendant Veronica James, a _newly-hired
caseworker under his supervision. (Williams Dep. at 37.)
-A59-
Williams instructed James to contact Murphy to verify
the allegations contained in the 2221 Report. He also told
James to visit the Tenenbaums’ home. James attempted to
contact Murphy later on Friday, but she had already left for
the day. James then visited the Tenenbaum home with a co-
worker named Thomas O'Connell.
When the caseworkers arrived at the Tenenbaum home
on Friday evening, they told the Tenenbaums that they
were there to investigate a report that Sarah had been
absent from school and was developmentally delayed.
(James Dep. at 11.) They did not inform the Tenenbaums of
their suspicion of sexual abuse. (Mary Tenenbaum Decl. at
§ 13.) James and O'Connell interviewed the Tenenbaums at
length (Mary Tenenbaum Decl. at { 15), and the
Tenenbaums informed the caseworkers that Sarah was
being treated at Maimonides Hospital for her speech and
developmental problems. The Tenenbaums gave James the
names of the pediatricians caring for Sarah and her younger
brother, Aaron, and signed releases for their medical
records. (James Dep. at 16.) They also informed the
caseworkers that they had an ongoing dispute with officials
at P.S. 230 over plans for Sarah's education, and believed
that the report of Sarah's absence and developmental
problems was made to retaliate for their refusal to go along
with the school's plans. (/d. at 11; Mary Tenenbaum Decl.
at §P 14.) The Tenenbaums partially undressed their
children so that James and O'Connell could inspect them
for any bruises or marks on their chests, backs or
extremities. The caseworkers found no signs of
maltreatment or abuse. (James Dep. at 14-15; O'Connell
Dep. at 18.) No effort was made to inspect either child's
genital area.
-A60-
No further action on the Tenenbaum case was taken over
the weekend. On Monday, January 8, 1990, James visited
P.S. 230 to interview Murphy and Sarah. Murphy related
the evidence of abuse she had gathered from Sarah on
January 4, 1990 and January 5, 1990. When Murphy, with
James present, asked Sarah whether her father touched her
near her vagina and hurt her, however, Sarah shook her
head "no." (James Dep. at 22-25.) In fact, she responded to
all of the questions asked of her that day by Murphy by
shaking her head "no," including the question "[d]oes your
mother bathe you." Jd. Murphy also reported to James that
a gym teacher had noticed a red mark on Sarah's thigh
several weeks earlier. (Murphy Dep. at 36.) The
Tenenbaums allege that the gym teacher could have seen
the mark only by undressing Sarah because she always
wore opaque tights to school: (Mary Tenenbaum Decl. at 4
21.)
After leaving the school, James reported what she had
learned to Williams. He instructed her to go to P.S. 230, to
effect an emergency removal of Sarah pursuant to Social
Services Law § 417 and Family Court Act § 1024, and to
take her to Coney Island Hospital to be examined by
doctors for possible sexual abuse. (James Dep. at 28.)
James and Williams made no effort to seek judicial
authorization prior to removing Sarah, although Williams
testified that a court order can be obtained within one day.
(Williams Dep. at 128.)
In the afternoon of Tuesday, January 9, 1990, James
visited P.S. 230 and gave the school officials a form which
indicated that she was taking Sarah into protective custody
in accordance with state law. (Oberferst Dep. at 39.) James
then took Sarah to Coney Island Hospital.
-A61-
At the hospital, a pediatrician and a gynecologist
conducted an examination of Sarah. The doctors found no
evidence of sexual abuse.
While James and Sarah were at Coney Island Hospital,
Williams contacted Mary Tenenbaum by phone to advise
her that the CWA had removed her daughter from school.
Mary Tenenbaum contacted her husbarjd and went to meet
with Williams at his office. Marc Tenenbaum arrived later.
The Tenenbaums assert that Williams spoke very rudely to
them. He allegedly warned them that they would not get
Sarah back, that Mary Tenenbaum was an unfit mother, and
that Marc Tenenbaum was a sex abuser. (Mary Tenenbaum
Decl. at {4 28-29.)
At the conclusion of Sarah's examination at Coney Island
Hospital, James took her to the CWA's Brooklyn field
office, where Sarah met her parents at about 7:30 to 8:30
p.m. (Mary Tenenbaum Decl. at { 32.)
Later that evening, Williams told the Tenenbaums that
the CWA would not file charges and that they could take
Sarah home because the medical examination did not find
evidence that the child had been sexually abused. (Mary
Tenenbaum Dep. at 241.)
Ultimately, Williams marked the case "unfounded,"
(Williams Dep. at 100), and no attempt to remove Saran
from the Tenenbaum home was made.
DISCUSSION
I. Standard for Summary Judgment
A party should be granted summary judgment only when
its moving papers show that "there is no genuine issue as to
-A62-
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). The
moving party bears the burden of establishing the absence
of relevant facts in dispute, and the court must resolve all
ambiguities and draw all reasonable inferences in favor of
the non-movant. Donahue v. Windsor Locks Bd. of Fire
Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). In addition, "not
only must there be no genuine issue as to evidentiary facts,
but there must also be no controversy regarding the
inferences to be drawn from them." Jd.
Plaintiffs correctly argue that a court generally should not
render summary judgment prior to the completion of
discovery. Fed. R. Civ. P. 56(f); Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). By
order, dated November 1, 1991, Hon. Carol Bagley Amon
of this Court issued an order "staying discovery as to
Monell claims against the City of New York and the New
York Board of Education" until completion of the non-
Monell discovery, at which time permission could be
sought to lift the discovery stay as to the remaining claims.
As a result, the defendants Flowers, Trent, Hammons,
Meyers, and the City of New York have not been deposed
or otherwise subject to discovery. Therefore, as to those
defendants, the issue of summary judgment will be held in
abeyance pending the completion of discovery, unless
plaintiffs’ claims against one or more of them are clearly
npe for summary judgment now and Monell-type discovery
could not affect the ultimate outcome.
II. Elements of Claims Under Section 1983
The Tenenbaums seek damages pursuant to 42 U.S.C. §
1983. To recover, they must show (1) "that some person
has deprived [them] of a federal right" and (2) "that the
person who has deprived [them] of that right acted under
-A63-
color of state or territorial law." Gomez v. Toledo, 446 U.S.
635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980). To
recover against employees of the City of New York in their
individual capacities, plaintiffs must also be prepared to
resist the asserted affirmative defenses of qualified
immunity. Jd.
Qualified Immunity
The individual defendants James, Williams, Flowers and-
Trent will be entitled to immunity if they can show that (1)
"it was not clear at the time of the official acts that the
interest asserted by the plaintiff was protected by a federal
statute or the Constitution," or (2) "it was not clear at the
time of the acts at issue that an exception did not permit
those acts," or (3) "even if the contours of the plaintiffs’
federal rights and the official's permissible actions were
clearly delineated at the time of the acts complained of, the
defendant[s} may [still] enjoy qualified immunity if it was
objectively reasonable tor [them] to believe that [their] acts
did not violate those nights." Robison v. Via, 821 F.2d 913,
920-21 (2d Cir. 1987). As to this third prong, courts have
explained that a defendant is entitled to summary judgment
if the defendant "'adduce[s] sufficient facts [such] that no
reasonable jury, looking at the evidence in the light most
favorable to, and drawing all inferences most favorable to,
the plaintiffs, could conclude that it was objectively
unreasonable for the defendant []' to believe that he was
acting in a fashion that did not clearly violate an established
federally protected right." 821 F.2d at 921 (quoting
Halperin v. Kissinger, 807 F.2d 180, 189 (D.C. Cir. 1986)).
Supervisor Liability
Plaintiffs assert individual claims against Doby Flowers
and Brooke Trent, the former Commissioner and former
-A64-
Deputy Commissioner, respectively, of the Department of
Social Services of the City of New York. As individuals,
Flowers and Trent can be liable only if they were
personally responsible for violations of plaintiffs’ rights, by,
inter alia, promulgating unconstitutional policies or plans,
or otherwise authorizing or approving the challenged
misconduct. See Rizzo v. Goode, 423 U.S. 362, 96 S. Ct.
598, 371, 46 L. Ed. 2d 561 (1976) (superior can be liable
for constitutional violation resulting from policy or order);
Duchesne v. Sugarman, 566 F.2d 817, 831 (2d Cir. 1977)
(superiors could be liable for policy-making); Meriwether
v. Coughlin, 879 F.2d 1037, 1048—(2d Cir. 1989)
(supervisor liable when he or she has actual or constructive
notice of an unconstituticnal practice and demonstrates
“gross negligence or deliberate indifference" by failing to
act).
Municipal Liability
Plaintiffs also assert claims against the City of New York,
Marva Livingston Hammons and Claude Meyers’ in their
official capacities, as the Commissioner, and Deputy
Commissioner of New City Social Services respectively,
and against the New York City Board of Education. The
claims against Hammons and Meyers, as well as the claims
against James and Williams in their official capacities as
caseworkers, are the equivalent of claims against New
York City. Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 361-
62, 116 L. Ed. 2d 301 (1991). The Tenenbaums could
recover against New York City or the Board of Education
based on their authorization of unconstitutional acts,
approval of unconstitutional customs, or failure to train. See
' As noted previously, Hammons and Meyers replaced Flowers and
Trent as Commissioner and Deputy Commissioner of Social Services.
of the City of New York after the present action was commenced.
- -A65-
Monell v. Department of Social Servs., 436 U.S. 658, 98 S.
Ct. 2018, 56 L. Ed. 2d 611 (1978) (city can be liable for
unconstitutional policy promulgated by its officers); City of
Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L.
—~ Ed. 2d 412 (1989) (complaint asserting failure to train as a
result of deliberate indifference to constitutional nights
states a claim for relief). While the city and its agencies
cannot be held liable based on respondeat superior, Monell,
436 U.S. at 694 n.58, they are not permitted to assert the
defense of qualified immunity that is available to the
individual defendants. Smith v. Wade, 461 U.S. 30, 32-33,
103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983).
III. Due Process Claims
A. Substantive Due Process
The Tenenbaums first argue that defendants’ removal of
their daughter from school to be examined for abuse
violated their Fourteenth Amendment right to substantive
due process.
Plaintiffs’ substantive due process claim derives from "the
right of the family to remain together without the coercive
interference of the awesome power of the state." Duchesne
v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). This right
is fundamental. Joyner v. Dumpson, 712 F.2d 770, 778 (2d
Cir. 1983).
Although fundamental, a constitutional violation of the
right to family integrity occurs only if defendants’ actions
"significantly interfere" with plaintiffs’ family integrity.
Zablocki v. Redhail, 434 U.S. 374, 386, 98 S. Ct. 673, 54 L.
Ed. 2d 618 (1978). For example, in Joyner, the Second
Circuit found that a statute which required that parents
wishing to obtain state-subsidized residential care for their
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children temporarily transfer custody to the state did not
significantly interfere with the parents' right to family
integrity. 712 F.2d at 778.
Similarly, in Fitzgerald v. Williams, 787 F.2d 403, 408
(8th Cir. 1986), the Eighth Circuit held that no substantive
due process violation occurred where caseworkers had
arranged for a psychologist to examine a child who was
allegedly abused. See also Doe "A" v. Special School Dist.;
637 F. Supp. 1138, 1146 (E.D. Mo. 1986) (detention by bus
driver for several hours did not infringe right to family
integrity).
As in Joyner, Fitzgerald and Doe "A", defendants’
deprivation of the Tenenbaums of their child for a single
afternoon for a medical examination did not significantly
infringe their fundamental right to live together without
interference from the state.
All” defendants are therefore entitled to summary
judgment on this claim.
B. Procedural Due Process
1. Removai of the Child from School
The Tenenbaums also allege that defendants deprived
them of their right to procedural due process. In Robison v.
Via, the Second Circuit held that
it [is] clearly established that a parent's interest in the
custody of his or her children [is] a constitutionally
protected "liberty" of which he or she [can] not be
deprived without due process, which [] generally
require[s] a predeprivation hearing. However, it [is]
equally well established that officials may temporarily
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deprive a parent of custody in “emergency”
circumstances "without parental consent or a prior
court order.”
821 F.2d 913, 921 (2d Cir. 1987) (emphasis in original)
(citations omitted).
In the present case, James and Williams relied on Section
1024 of the New York Family Court Act in removing Sarah
from school on January 9, 1990. That Section provides that
a child may be removed, absent parental consent or a court
order, if there is "reasonable cause to believe that the child
is in such circumstances or condition that his continuing in
said ga of residence or in the care and custody of the
parent . . . presents an imminent danger to the child's life or
health," “and there is insufficient time to obtain prior
judicial authorization for the removal pursuant to Section
1022 of the Family Court Act.
Plaintiffs claim defendants violated state law in removing
Sarah. Given the chronology in this case, it may be that
James and Williams had sufficient time to obtain a Section
1022 court order. Such an order, according to Williams,
could have been obtained within one day. (Williams Dep.
at 128.) However, whether the procedure embodied in
Sections 1022, or 1024, or another Section of the Family
Court Act should have been followed by CWA has little, if
any, bearing on the issue before the court. As noted by now
Chief Judge Newman, writing for the Second Circuit in
Doe v. Connecticut Dep't of Children and Youth Servs.:
2 Section 1022 provides that a family court judge may issue an order
directing the temporary removal of a child from his or her home, before
a child abuse or neglect petition is filed, upon a finding that an
emergency exists.
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Appellants challenge Judge Dorsey's conclusion . . . [in
granting summary judgment to defendants, upon the
ground] that factual issues remain as to whether the
defendants fully complied with the requirements of
state law. Even if true, the claim is irrelevant. The
question is whether 'no reasonable jury, looking at the
evidence most favorable to, the plaintiffs could
conclude that it was objectively unreasonable for the
defendant[s]' to believe that [they were] acting in a
fashion that did not clearly violate an established
federally protected right.
911 F.2d 868, 869 (2d Cir. 1990) (emphasis in original).
The pivotal question, then, is whether Sarah's removal
was justified as an appropriate response to a legitimately
perceived emergency. If so, neither parental consent nor
prior judicial approval was required. The meaning of the
word "emergency" in the present context is explained in
Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991) thusly:
the child is immediately threatened with harm, . . . for
example . . . where there is evidence of serious ongoing
abuse and the officials have reason to fear imminent
recurrence....
A juxtapositioning of the Hurlman standard with the
specific information that. Sarah communicated to her
teacher, and which the teacher reiterated to James, indicates
that an emergency existed, even if the child's claimed
recantation before James is taken into account. A CWA
worker, in possession of the above information, would have
reasonable cause to conclude that Sarah had been a victim
of sexual abuse by her father, and that returning the child to
her home would place her at imminent risk for further
abuse. See, e.g., Cecere v. City of New York, 967 F.2d 826,
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830 (2d Cir. 1992) ("temporary assertions of custodial
authority in the face of a reasonably perceived emergency
do not violate due process"); Doe v. Connecticut Dep't of
Children and Youth Servs., 911 F.2d 868 (2d Cir. 1990);
Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983)
("when a child's safety is threatened, that is justification
enough for action first and hearing afterwards"); Chayo v.
Kaladjian, 844 F. Supp. 163, 171 (S.D.N.Y. 1994) ("The
Caseworkers had sufficient reason to believe that the Chayo
children might be in imminent danger. The steps they took
(i.e. temporary removal of children from parents' home for
medical examination without court order or parental
consent] in light of the information available to them and
the risk of danger to the Chayo children were reasonable.
Consequently, the plaintiffs were not deprived of due
process by this temporary removal.")
It should be noted that the substance of what the child
communicated to Murphy, and what Murphy, in turn, told
James is essentially uncontroverted, viz. that Sarah's father
hurt her through contact with her vaginal area at night.
Being unable to factually call into question the substance of
the message, plaintiffs seek to create a factual issue via an
assault on the messenger:
Mary Murphy, the source of the charge that plaintiff
Marc Tenenbaum harmed his daughter, was not a
reliable informant who had provided valuable or
accurate information to the defendants in the past. See,
e.g., Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12
L. Ed. 2d 723 (1964), U.S. v. Pea [Pena], 961 F.2d 333,
338, note 2 (2d Cir. 1992). Instead, Murphy was a
novice school teacher, who had never before been
involved in a child abuse investigation, and who had no
prior contact whatsoever with the defendants or any
other employees of the Child Welfare Administration.
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(Pls.' Apr. 23, 1993 Mem. in Opp. at 23.)
Plaintiffs cite only criminal cases in support of their
argument that if CWA _ workers "possess only
uncorroborated information from an informant of untested
reliability, they do not have probable cause... . ." (Pls.' June
1, 1993 Reply Mem. at 7.) The present case, of course, is
civil. The person speaking to James is a non-anonymous
public school teacher, charged with a statutorily-created
responsibility to report suspected incidents of child abuse.
She would have no reason to fabricate, or otherwise color
the nature of her communications with Sarah.? And James
would have no reason to reject the information provided by
Murphy simply because she had no prior contact with
CWA and, therefore, could not be labelled as a "reliable
informant" as that term is used in the field of criminal law.
If that were a precondition to a finding of probable cause in
a child abuse case, CWA would be unable to effect an
emergency removal even if, for example, a teacher saw a
parent commit a particularly heinous sexual act upon his or
her child as they entered their home absent some type of
independent proof confirming the accuracy of the teacher's
report, unless that teacher had prior, and positive, contacts
with CWA.
No authority has been advanced for the proposition that
such a stringent standard is an essential component to a
finding of probable cause in a child abuse case, and the
court rejects the argument that it is.
> No evidence has been elicited to even remotely lend credence to
plaintiffs’ claim that Murphy fabricated the entire scenario "because of .
. . past disagreements with plaintiffs." (See Compl. at J 21.)
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DAES ae oC
One further argument raised by the plaintiffs warrants
comment, that being whether the defendants’ conduct in not
removing the child until January 9th belies the existence of
a claimed emergency.
To place this argument in context, a brief reiteration of
certain facts is necessary. Based on _ Sarah's
communications to Murphy, a report was made to the State
Central Register on the morning of Friday, January Sth.
The report was, in turn, faxed that same day to the CWA
Brooklyn Field Office. Williams assigned the case to James
and told her to contact the source of the information in an
effort to verify its accuracy. James was unsuccessful in her
efforts to reach Murphy on Friday afternoon, but did
establish contact on Monday, January 8th. At that time,
Murphy told James of the information she had received
from Sarah. That information was relayed from James to
Williams who instructed her to remove the child from
school and have her medically examined, which was done
on Tuesday, January 9, 1990.
The delay in this case appears to be reasonable. The three
day hiatus between receipt of the report and the call for
removal was occasioned by, inter alia, CWA's decision not
to act until Murphy, as the source of the report, was
personally interviewed. But assuming, arguendo, that there
was no reason to wait three days before acting, does this
delay invalidate the claim of emergency? The holding in
Doe v. Connecticut Dep't of Child and Youth Servs.
compels a negative answer to that question, as evidenced
by the following excerpt:
Nor does the fact that the defendant waited three days
from receipt of the psychologist's report before
invoking their authority under the state statute preclude
the availability of qualified immunity. The suit sought
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damages for the removal of the child, not the delay in
taking such action. The removal remained objectively
reasonable when it was undertaken.
911 F.2d at 870 (emphasis added).
In sum, the court finds, as a matter of law, that the
information provided by Murphy to James established
reasonable grounds for the emergency removal of Sarah.
Accordingly, none of the defendants violated a due process
night of any of the plaintiffs. That being the case, James and
Williams, as well as all of the other defendants are entitled
to summary judgment on this, the first prong of the
plaintiffs’ procedural due process claim.
Before proceeding to the question of whether plaintiffs’
procedural due process rights were compromised by the
manner in which Sarah was subjected to a medical
examination, qualified immunity -- as an alternate ground
for granting summary judgment to James, Williams,
Flowers and Trent will be discussed. Even if, arguendo, a
material issue of fact were to be gleaned from the materials
before the court, thereby precluding an award of summary
judgment to all defendants vis-a-vis Sarah's removal, the
caseworkers, together with Flowers and Trent would still
be entitled to such relief under the doctrine of qualified
immunity.
To partially reiterate, qualified immunity is available to
defendant if his or her conduct, inter alia, was objectively
reasonable or if "officers of reasonable competence could
disagree on whether the probable cause_test was met."
Robison, 821 F.2d at 921. Measured against the second part
of that standard, which recognizes the "Hobson's choice"
often confronting those involved in the investigation of
child abuse charges, van Emrik v. Chemung County Dep't
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of Social Servs., 911 F.2d 863, 866 (2d Cir. 1990), James,
Williams, Flowers and Trent may not legitimately be called
upon to answer in damages for the events of January 1990.
A juxtapositioning of the previously explained activities of
James and Williams against the doctrine of qualified
immunity compels that conclusion."
2. Interference with Right to Choose Medical
Treatment
The Tenenbaums also assert that defendants
unconstitutionally interfered with their parental nights by
having a pediatrician and gynecologist at Coney Island
Hospital examine Sarah. Given the highly intrusive nature
of this particular examination, which was solely for
investigative purposes, the Court agrees.
Although Sarah's removal was based on probable cause to
believe that an emergency existed, that circumstance ceased
upon her custody being temporarily vested in CWA. She
was then no longer in what was perceived to be harm's -
way. Thereafter, procedural due process required notice to
the parents and judicial authorization before Sarah could be
subjected to an inspection of her vagina and surrounding
area. See van Emrik v. Chemung County Dep't of Social
Servs., 911 F.2d 863, 867 (2d Cir. 1990) ("we believe the
Constitution assures parents that, in the absence of parental
consent, x-rays of their child may not be undertaken for
investigative purposes at the behest of state officials unless
* Although discovery of Flowers and Trent has not commenced, it is
clear -- as explained above -- that their activities vis-a-vis Sarah's
removal, if any, are not actionable due to the defense of qualified
immunity. If they are deposed, the purpose will be to elicit information
bearing upon the question of liability of the City of New York with
respect to the medical examination of Sarah.
-A74-
a judicial officer has determined, upon notice to the parents
and an opportunity to be heard, that grounds for such an
examination exist and that the administration of the
procedure is reasonable under all the circumstances"); cf.
Chayo v. Kaladjian, 844 F. Supp. at 169 ("The instant case
[Chayo] is distinguishable . . . [from van Emrik] because
the x-ray examinations [of the Chayo child] were ordered
not by the caseworkers but by Doctor Ibrahm Ahmed, a
pediatric resident at St. Vincent's Hospital, and for medical
rather than investigative purposes.").°
Defendants argue that van Enmrik is "factually
distinguishable from the case at bar and is, therefore,
inapplicable to this case." (Defs.' Mar. 5, 1993 Mem. at 19-
20.) Granted, the medical examination of Sarah did not
involve any physical risk, unlike the long-bone X-rays in
van Emrik which did entail some possible risk of physical
harm. But that fact does not render the rationale and
holding of van Emrik irrelevant for present purposes. Here,
as in van Emrik, time -- following the emergency removal -
- permitted parental and judicial involvement prior to the
medical examination being conducted. Harm to a child
cannot legitimately be defined to exclude significant, and
objectively reasonable emotional trauma. As noted in Doe
v. Renfrow, "[i]t does not require a constitutional scholar to
conclude that a nude search of a thirteen-year-old child is
an invasion of constitutional rights of some magnitude.
More than that: it is a violation of any known principle of
human dignity." 631 F.2d 91, 92-93 (7th Cir. 1980)
(emphasis added), cert. denied, 451 U.S. 1022, 101 S. Ct.
3015, 69 L. Ed. 2d 395 (1981); see generally Shatz,
* Note that Sarah's case, unlike that of the child in Chayo, is factually
akin to van Emrik in that a caseworker directed that a medical
examination be conducted, which was done solely for investigative
purposes.
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Donovan & Hong, The Strip Search of Children and the
Fourth Amendment, 26 U.S.F. L. Rev. 1, 11-14 (1991) (a
strip search, for a child, is "akin to sexual abuse.").
Sarah was subjected to intrusive bodily examinations by
two strangers, in a strange location, in the absence of a
parent or other reassuring figure. While the child in van
Emrik faced the possibility of physical injury, Sarah, almost
certainly, did, in fact, experience psychological injury on
January 9, 1990.
Defendants maintain that the expedited procedure
employed by CWA on that date actually benefited plaintiffs
by abbreviating the interval between Sarah's removal and
return to her family. (Defs.' Mar. 5, 1993 Mem. at 20-21.)
This argument trivializes the constitutional implications of
the State subjecting a person to an investigatory, intrusive
medical examination without notice, and an opportunity to
be heard, within the context of a judicial proceeding.
In sum, plaintiffs have established, as a matter of law,
that their procedural due process nights were violated by the
manner in which Sarah was subjected to a medical
examination on January 9, 1990. However, in van Emrik,
the Second Circuit found the individual defendants immune
because the law was not settled at the time the events in
that case occurred. The events at issue in the present case
also occurred when the law establishing this mght was not
settled, prior to the Second Circuit's decision in van Emrik.
The individual defendants here, as in van Emrik, are
therefore immune from suit. Accordingly, Williams, James,
Flowers and Trent are entitled to summary judgment on
this claim. The City of New York, however, not having the
benefit of the qualified immunity defense, may still be
liable to the Tenenbaums under the principles of municipal
liability previously discussed.
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IV. Fourth Amendment Claims
A. Seizure of the Child from School
The Tenenbaums also allege that defendants' removal of
Sarah from school violated her Fourth Amendment night to
be free from unreasonable seizures because defendants
lacked probable cause to believe she had been abused.
While at least one court has questioned whether taking
custody of a minor is violative of the child's liberty interest
(on the theory that custody is merely transferred from the
parent to the state), see Lossman v. Pekarske, 707 F.2d 288
(7th Cir. 1983), the sounder view, and apparently the law in
this Circuit, is that the state's assumption of custody is a
seizure under the Fourth Amendment. See van Emrik, 911
F.2d at 867 ("That interest [viz. the parents' decision-
making role concerning medical procedures for child]
assumes special significance when the procedures
undertaken at the initiative of a state official serve
primarily an investigative function; in such circumstances,
Fourth Amendment and bodily integrity interests of the
child are implicated, interests the parents are entitled to
assert on the child's behalf.") (citations omitted); cf. Glass
v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993) ("Although
confinement of the mentally ill by state action is generally
analyzed under the due process clause of the fourteenth
amendment, we analyze the distinct right to be free from an
unreasonable government seizure of the person for
whatever purpose") (quoting Maag v. Wessler, 960 F.2d
773 (9th Cir. 1991)). The seizure of Sarah, then, implicates
her Fourth Amendment rights.
The same may not be said of her parents to the extent that
they have sued individually, as well as on Sarah's behalf.
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Neither Marc nor Mary Tenenbaum has been the subject of
a search or a seizure. See Donald v. Polk County, 836 F.2d
376 (7th Cir. 1988) (the "removed" child, her parents and
her siblings sued the Polk County Department of Social
Services under 42 U.S.C. § 1983, claiming, inter alia, a
violation of their Fourth Amendment rights; court held that
"none of the plaintiffs in this case have [sic] been the object
of a search and seizure, with possible exception of. . . [the
child]," thereby impliedly rejecting the notions that a parent
suffers derivative harm, and that a child constitutes an
"effect," for Fourth Amendment purposes.). Moreover, the
Court is not aware -- based on its own research and the
submissions of counsel -- of any federal decision which has
held that a parent may legitimately assert an individual, as
distinct from representative, Fourth Amendment claim
based upon the seizure of a child.
A parent's protection under such circumstances is to be
found elsewhere in the Constitution, often in the due
process clause of the Fourteenth Amendment. That is the
situation with respect to Marc and Mary Tenenbaum.
Given that defendants’ conduct falls within the ambit of
the Fourth Amendment as to Sarah, this court must
consider what standard to apply in judging the
constitutionality of the seizure. The Supreme Court has not
had occasion to answer the question of whether probable
cause, or some lesser standard, governs the removal of
children in cases of suspected abuse or neglect, and the
Second Circuit has written little on the subject.°
° What guidance there is from the Second Circuit, however, seems to
indicate that "probable cause" is the standard. van Emrik, 911 F.2d at
867; Doe v. Connecticut Dep't of Children and Youth Servs., 712 F.
Supp. 277, 284 (D. Conn. 1989) ("The emergency removal of John Doe
requires ‘probable cause’ to believe that he was in immediate physical
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Searches and seizures effected by police for law
enforcement purposes may occur only pursuant to a
warrant’ supported by probable cause unless within "a few
specifically established and well-delineated exceptions."
Coolidge v. New Hampshire, 403 U.S. 443, 454-5, 91 S. Ct.
2022 5, 29 L. Ed. 2d 564 (1971) (citations omitted).
Outside the realm of criminal law, however, the Supreme
Court has approved searches and seizures on less than
probable cause where the government has "'special needs,
beyond the normal need for law enforcement." O'Connor
v. Ortega, 480 U.S. 709, 720, 107 S. Ct. 1492, 94 L. Ed. 2d
714 (1987) (quoting Blackmun, J., concurring in New
Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 747, 83
L. Ed. 2d 720 (1985)). In such cases, searches and seizures
remain subject to the general reasonableness requirement of
the Fourth Amendment. 7.L.0., 469 U.S. at 341, 105 S.Ct
at 742.
The Supreme Court has used special needs to justify
departure from the requirements of probable cause and a
warrant when special needs "make the warrant and
danger from his surroundings and that removal was necessary to insure
his safety."), aff'd, 911 F.2d 868 (2nd Cir. 1990).
: Throughout this decision, the word "warrant" and the term "judicial
authorization" will be used interchangeably as synonyms, with the
understanding that a judicial authorization in the present context, and
thus a "warrant," might consist of, inter alia, an oral court order given
over the telephone, followed by a confirmatory written order.
Parenthetically, such a practice was often utilized -- with the telephone
call being taped -- in the Family Court of Suffolk County for Section
1022 applications under the Family Court Act (see p. 970, n.2 supra)
when the author of this opinion served in that court in the early- to mid-
1980s.
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probable-cause requirements impracticable." O'Connor,
480 U.S. at 720, 107 S. Ct. at 1499 (quoting Blackmun, J.,
concurring in 7.L.0., 469 U.S. at 351, 105 S. Ct. at 747
(emphasis added)). Alternatively, the Court has stated that
it will dispense with a warrant and probable cause when
they are "likely to frustrate the governmental purpose
behind the search." O'Connor, 480 U.S. at 720, 107 S. Ct.
at 1499 (quoting Camara v. Municipal Court of City and
County of San Francisco, 387 U.S. 523, 533, 87 S. Ct.
~ 1727, 1733, 18 L. Ed. 930 (1967) (emphasis added)). In
another case, the Court held that a warrant was not required
where it would "interfere to an appreciable degree" with the
government scheme. Griffin v. Wisconsin, 483 US. 868,
876, 878, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987). °
* In each case where the Court has found special needs to justify lifting
the warrant and probable cause requirements, it has analyzed separately
the burdens imposed by each requirement.
In T.L.O., the court approved searches of school children subject only
to a requirement of reasonableness. The Court held that probable cause
was not required based on the need to relieve teachers of the burden of
learning "the niceties of probable cause,” 469 U.S. at 343, 105 S. Ct. at
743 and to allow them "freedom to maintain order." Id. at 341, 105 S.
Ct. at 742. It held that the warrant requirement would “unduly interfere
with the maintenance of the swift and informal disciplinary procedures
needed in the schools." /d. at 340, 105 S. Ct. at 742.
In O'Connor, the Court dispensed with the warrant requirement in the
search of a government employee's office because "requiring an
employer to obtain a warrant whenever the employer wished to enter an
employee's office, desk, or file cabinets for a work-related purpose
would seriously disrupt the routine conduct of business and would be
unduly burdensome." 480 U.S. at 722, 107 S. Ct. at 1500. Probable
cause was not required because it would cause "the work of
[government] agencies [to] suffer." 480 U.S. at 723, 107 S. Ct. at 1500.
In Griffin, the Court held that a probationer's home could be searched
without probable cause or a warrant because those requirements would
"make it more difficult for probation officials to respond quickly to
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Should a lesser standard than probable cause and a
warrant be utilized in child abuse cases, due to special
needs making the requirements "impracticable," or likely to
"frustrate the governmental purpose" behind the search, or
likely to "interfere to an appreciable degree" with the
government goal involved?
Before endeavoring to answer that question, it may be
helpful to try and determine the likely impact of the
application of the probable cause/warrant standard on
society's efforts to combat abuse and neglect of its children.
That process should shed light on whether any one or more
of the above mentioned grounds for relaxing those
requirements is applicable in the present context. If so,
perhaps a lesser standard should control. But if not, no
justification exists for a departure from the constitutional
norm.
Probable Cause
Probable cause requires only that a magistrate "make a
practical, commonsense decision whether, given all the
circumstances . . . before him [or her] . . . there is a fair
probability" that the facts to which the probable cause
determination is addressed exist." Illinois v. Gates, 462
U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
The application of this standard should not hinder child
abuse investigations. Abusive or neglectful conduct
witnessed by neighbors and other identified individuals,
and signs of abuse in the appearance and behavior of
evidence of misconduct," would substitute a magistrate for the
probation officer "as the judge of how close a supervision the
probationer requires," and "would reduce the deterrent effect of the
supervisory arrangement." 483 U.S. at 876-79, 107 S. Ct. at 3169-71.
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children detected by teachers and child care workers,
routinely provide probable cause to believe that a child has
been abused or neglected.
The feasibility of a probable cause requirement is
supported by the law of New York, which requires that
before a child may be removed, in an emergency situation,
government officials possess "reasonable cause," the
equivalent of probable cause,” to believe the child is in
danger of harm. N. Y. Fam. Ct. Act § 1024. Thus, had
Williams and James, contrary to the fact, lacked probable
cause to believe Sarah was in danger at toe time James
removed her from school, they would have violated state
law in addition to the Constitution.
One concern of a probable cause requirement is that
anonymous reports alone would not justify searches or
seizures in furtherance of an investigation. Assuming that
such a report were sufficiently corroborated, however, it
would pass constitutional muster. Gates, 462 U.S. at 241-
43, 103 S. Ct. at 2333-35. While uncorroborated,
anonymous tips could not provide probable cause, Gates,
462 U.S. at 227, 103 S. Ct. at 2326, this court does not
believe that the seizure of a child based on such tips,
possibly motivated by malice, comports with the Fourth
Amendment. Even under the lesser standard of reasonable
suspicion, which is the sole alternative to probable cause in
® People v. Stockman, 159 Misc. 2d 730, 734 n.4, 606 N.Y.S.2d 864,
867 n.4 (Justice Ct. 1993). See also, People v. Hetrick, 80 N.Y.2d 344,
349-50, 604 N.E.2d 732, 735, 590 N.Y.S.2d 183, 186 (1992)
(reasonable cause and probable cause to arrest are used
interchangeably). Reasonable cause in family court proceedings is the
equivalent of reasonable cause in criminal cases. Commissioner of
Social Services ex rel. Riddle v. Rapp, 127 Misc. 2d 835, 487 N.Y.S.2d
477, 481-82 (Fam. Ct. 1985).
-A82-
this case,'° an entirely uncorroborated anonymous tip
would generally not provide grounds for a search or
seizure. Alabama v. White, 496 U.S. 325, 329, 110 S. Ct.
2412, 2415, 110 L. Ed. 2d 301 (1990).
The Supreme Court has rejected probable cause in some
cases, in part, to relieve government officials such as
school teachers and administrators and public employers of
"the necessity of schooling themselves in the niceties of
probable cause." 7.L.0., 469 U.S. at 343, 105 S. Ct. at 744;
see also O'Connor, 480 U.S. at 724, 107 S. Ct. at 1501.
Caseworkers investigating child abuse, however, like police
officers, routinely conduct investigative seizures and
searches. Requiring familiarity with the Fourth Amendment
will not, therefore, be unduly burdensome.
In Wyman v. James, 400 U.S. 309, 317-19, 91 S. Ct. 381,
385-8727 L. Ed. 2d 408 (1971), the Supreme Court held
that a child welfare visit by a caseworker to the home of a
government benefit recipient, if, arguendo, a search, did
not require probable cause. In Wyman, however, the court
based its decision on the fact that the home visit by the
caseworker was primarily rehabilitative, that it was "not
forced or compelled," and that the state was entitled to
place conditions on the award of benefits to insure their
proper use. /d. By contrast, the seizure in the present case
was for investigative purposes, plaintiffs had no right or
'° Were the court to dispense with probable cause, some degree of
individualized suspicion would still be required to allow seizures of
children. In United States v. Montoya de Hernandez, 473 U.S. 531,
541, 105 S. Ct. 3304, 3310, 87 L. Ed. 2d 381 (1985), the Supreme
Court rejected the creation of a third standard of individualized
suspicion in addition to probable cause and reasonable suspicion as
inconsistent with “the Fourth Amendment's emphasis upon
reasonableness" and because “subtle verbal gradations may obscure
rather than elucidate the meaning of the provision in question."
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opportunity to oppose it, and no public monies were
involved. Wyman does not, therefore, support a standard
less than probable cause in the present case. See
Investigating Child Abuse: The Fourth Amendment and
Investigatory Home Visits, 89 Colum. L. Rev. at 1051-53
(arguing that Wyman is inapposite to child abuse
investigation searches and seizures).
Warrant
Like probable cause, a warrant is unlikely to frustrate the
state's attempts to investigate child abuse. New York law
mandates judicial authorization to seize a child absent an
emergency, and this requirement is complied with on a
routine basis without deleterious consequences. See N.Y.
Fam. Ct. Act § 1022 (pertaining to court order for
temporary removal of child before petition charging abuse
or neglect filed) and § 1024 (pertaining to “emergency
removal[s] without court order"); see also Besharov,
Practice Commentary to N.Y. Fam. Ct. Act § 1022 at 314
(1983).
In sum, upon analysis of the burdens they would impose,
it appears that neither probable cause, nor a warrant in the
sense of prior oral or wmitten judicial authorization (see
discussion supra at 974 n.7), is "impracticable," or likely to
"frustrate the governmental purpose" or “interfere to an
appreciable degree" with the government goal of
effectively addressing the child abuse problem. Therefore,
the court concludes that the probable cause and warrant
requirements apply to child abuse searches and seizures
under the Fourth Amendment.
Returning to the present case, probable cause existed for
Sarah's emergency removal on January 9, 1990 and
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accordingly, her Fourth Amendment rights were not
violated by the removal.
Alternatively, the individual defendants in this case are
entitled to qualified immunity because the application of
the probable cause and warrant requirements to child abuse
investigations by caseworkers was unsettled at the time of
defendants' investigation, and still, as noted at pages 973
and 974, supra, is unclear. Even if the general principles of
law were sufficiently defined in January 1990 to place
potential defendants on notice, the individual defendants
here would still be immune from civil liability "because it -
was objectively reasonable for them to believe they
violated no . . . [Fourth Amendment] rights when they
seized .. . [Sarah]." Robison, 821 F.2d at 921.
While the Courts in Franz v. Lytle, 997 F.2d 784 (10th
Cir. 1993), and Good v. Dauphin County Social Servs., 891
F.2d 1087, 1094 (3d Cir. 1989), held that Fourth
Amendment jurisprudence was sufficiently well developed
to place persons investigating child abuse on notice of its
applicability to their work, those cases involved searches
or seizures by or with the participation of police officers,
whose conduct is regularly governed by the Fourth
Amendment. By contrast, in Landstrom v. Illinois Dep't of
Children & Family Servs., 892 F.2d 670, 676-77 (7th Cir.
1990), and Darryl H. v. Coler, 801 F.2d 893, 908 (7th Cir.
1986), the Seventh Circuit held that caseworkers were
immune from claims under the Fourth Amendment because
its application to child abuse investigations was unsettled.
All defendants are entitled to summary judgment. Sarah's
removal was the result of a reasonably perceived
emergency, coupled with probable cause, thereby being in
full compliance with the requirements of the Fourth
Amendment. Alternatively, even if, arguendo, such were
-A85-
not the case, the individual defendants, viz. Williams,
James, Flowers and Trent, would be entitled to summary
judgment on the basis of qualified immunity. That defense,
of course, is not available to the City.
B. "Body Cavity" Examination
The Tenenbaums assert that defendants also violated
Sarah's Fourth Amendment rights by arranging for doctors
at Coney Island Hospital to conduct what plaintiffs label as
a "stp search" and a "body cavity” examination of her.
Such examinations in a child abuse context have not been
addressed by the Supreme Court, and this issue appears to
be one of first impression in this Circuit.'' Semantics aside,
the medical examination of Sarah's vagina and surrounding
areas is Clearly a search within the meaning of the Fourth
Amendment.
The existence of an emergency, coupled with probable
cause, justified Sarah's removal. That emergency did not
extend, as noted previously, to the invasive, investigatory
examination to which Sarah was thereafter subjected.’
'' Plaintiffs cite a variety of cases involving either strip searches or
body cavity searches of inmates and arrestees and impliedly analogizes
these cases to those involving medical examinations of suspected
victims of child abuse.
Defendants’ argument simply seeks, unpersuasively, to distinguish
van Emrik from the case at bar, supplemented by the comment that the
"federal removal standard articulated in Robison v. Via should be
sufficient to permit a medical examination to determine if Sarah was
sexually abused." (Defs.' May 20, 1993 Reply Mem. at 24.)
2 In the rare event that investigating officials reasonably believe that
evidence of abuse is likely to disappear before a warrant can be
obtained, exigent circumstances arguably would permit an intrusive
examination without a warrant. Cf, Schmerber v. California, 384 U.S.
757, 770-71, 86 S. Ct. 1826, 1835-36, 16 L. Ed. 2d 908 (1966)
-A86-
Therefore, the examination -- done without judicial
authorization -- constituted a violation of the Fourth
Amendment.
Decisions by other courts support the requirements of
both probable cause and a warrant for intrusive
examinations of children for evidence of abuse. In Good v.
_ Dauphin County Social Servs., 891 F.2d 1087, 1092-93 (3d
Cir. 1989), the Third Circuit held that a strip search of a
child as part of an investigation of abuse was constitutional
only if conducted pursuant to a warrant issued on probable
cause, absent consent or exigent circumstances.
In Franz v. Lytle, 997 F.2d 784, 788 (10th Cir. 1993), the
Tenth Circuit held that a warrant issued on probable cause
was required before a police officer investigating alleged
child abuse could constitutionally probe the child's genitals
for evidence of abuse and subject her to a medical
examination by a doctor."
In contrast to Good and Franz, the Seventh Circuit in
Darryl H. v. Coler held that visual inspections of the
- unclothed bodies of children for evidence of child abuse
could be justified without a warrant or probable cause,
upon a showing of reasonableness, "balancing . . . the need
for the particular search against the invasion of personal
rights that the search entails." 801 F.2d 893, 902-03 (7th
Cir. 1986) (citation omitted).
(evanescent nature of defendant's blood-alcohol level permitted blood
test without a warrant).
The facts of this case are set forth in Franz v. Lytle, 791 F. Supp.
827, 829 (D. Kan. 1992).
-A87-
While this court does not necessarily disagree with the
holding in Darryl H., it regards the examination in the
present case as categorically different from the examination
conducted in that case. See Franz v. Lytle, 997 F.2d 784,
790-91 (10th Cir. 1993) (distinguishing visual inspections
and inspections involving touching a child's nude body).
Requiring a warrant for a mere visual inspection (following
an emergency removal based on probable cause) --
particularly of asexual parts of the anatomy -- could
frustrate child welfare workers in their efforts to uncover
child abuse by converting a quick inspection into a time-
consuming procedure.
In sum, the invasive search of Sarah -- given the fact that
the emergency which justified her removal no longer
existed at the time of the investigatory medical examination
-- violated the Fourth Amendment, as well .as_ the
procedural due process component of the Fourteenth
Amendment as previously discussed.
However, as also discussed supra, the application of the
Fourth Amendment to child abuse investigations was
insufficiently established at the time of defendants’ -
investigation to overcome their defense of qualified
immunity. Williams, James, Flowers and Trent are,
therefore, entitled to summary judgment. That defense is
not available to the City of New York. Accordingly, under
the circumstances discussed previously, the City might be
liable to plaintiffs for the failure to obtain judicial
authorization for the medical examination of Sarah.
V. Right to an Adequate Investigation
Plaintiffs also assert an independent right to an "adequate
investigation" prior to “endangerment" of _ their
-A88-
constitutional rights. The Constitution affords plaintiffs no
such night. ,
Plaintiffs cite several cases in which courts found
searches or seizures to be unreasonable based in part on the
failure of government officials to adequately investigate the
facts of the case prior to conducting the search or seizure.
E.g., BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986) (failure
to investigate made arrest unreasonable); Williams ex rel
Williams v. Ellington, 936 F.2d 881, 888-89 (6th Cir. 1991)
(school officials would be required to investigate an
anonymous tip before conducting a search or seizure). As
these cases illustrate, allegations of inadequate
investigation are a component of plaintiffs’ Fourth
Amendment right to be free from unreasonable searches
and seizures. As stated, supra, however, defendants
possessed probable cause to seize Sarah. The constitutional
flaw associated with the examination arises from the law of
judicial authorizations, not from an inadequate
investigation. All defendants are therefore entitled to
dismissal of this claim.
VI. Violation of 42 U.S.C. § 671(a)
Plaintiffs assert that defendants' failure to make
“reasonable efforts" to provide services to preserve their
family violates 42 U.S.C. § 671(a). However, the
"reasonable efforts" provision of Section 671(a) does not
confer a private right of action, nor may it be enforced in an
action pursuant to 42 U.S.C. § 1983. Suter v. Artist M.,, ae
U.S. _, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992).
Accordingly, all defendants are entitled to summary
judgment on this claim.
-A89-
VII. Claims by Mary Tenenbaum
Plaintiff Mary Tenenbaum argues that, whatever
allegations defendants received regarding abuse by her |
husband, they had no information implicating her, and they
therefore viclated her rights by removing and examining
Sarah. By plaintiffs' reasoning, however, a caseworker
could remove a child only when all adults residing in the
household participate in abuse. That is not the law. Sarah
was temporarily removed from the home in which she and
the suspected abuser resided. The fact that Mary
Tenenbaum also was a member of that household and,
therefore, incidentally impacted by the removal, is not
violative of her constitutional rights.
VIII. Claims Against the Board of Education
Plaintiffs claim that the New York City Board of
Education violated their constitutional mghts when its
employees (1) participated in James' questioning of Sarah
on Monday, January 8, 1990, (2) helped James remove
Sarah from school on January 9, 1990, and (3) searched
Sarah at some time prior to the report of child abuse.’ (Pls.'
Apr. 23, 1993 Mem. in Opp. at 43-45.)
These activities are said to be the result of Board policies,
thereby rendering the Board answerable in damages to the
'* In paragraphs 36 and 37 of the complaint, plaintiffs allege that the
Board had a policy of permitting dolls to be used by improperly trained
teachers during child abuse investigations. This claim is not addressed
by plaintiffs in opposing defendants’ motion for summary judgment.
That apparently is not by way of oversight, but rather is attributable to
the fact that there is no evidence in the record -- including the
deposition of Murphy -- to support the conclusion that such a policy, if
it existed, had any bearing on the alleged constitutional deprivations.
-A90-
Tenenbaums. More particularly, it is alleged in their
complaint that the Board:
1. had a policy of permitting the Department of Social
Services to remove children from schools without parental
consent, a court order, or the presence of an emergency,
and
2. had a policy permitting its employees to conduct strip
searches of children in the course of their investigations of
child abuse allegations.
As noted earlier, discovery of plaintiffs' Monell claims
has been stayed. However, Murphy and James have been
extensively deposed concerning a number of subjects,
including what transpired at the school on January 8th and
January 9th, 1990.
As to the claimed complicity of Board employees in the
questioning and removal of Sarah from school, it is true
that the Board of Education's employees acted pursuant to
its policies in helping James remove Sarah. See Regulation
of the Chancellor, No. A750, Reports of Suspected Child
Abuse and Maltreatment at 4-6 (May 5, 1989). That
assistance, however, did not violate plaintiffs’ rights.
Plaintiffs argue that the Board of Education should be held
liable because its employees conspired with James. To
establish a conspiracy to violate a person's civil nights,
however, a plaintiff must establish that defendants
“reached an understanding’ to violate [plaintiffs] rights."
Strength v. Hubert, 854 F.2d 421, 425 (11th Cir. 1988)
(citations omitted); see also Dahlberg v. Becker, 748 F.2d
85, 93 (2d Cir. 1984) ("meeting of the minds" must occur
for a civil rights conspiracy to exist). In the present case,
there is no basis for concluding that the employees of the
Board of Education reached an understanding with James
-A91-
to deprive the Tenenbaums of their mghts under the
Constitution. Rather, the Board of Education's employees
merely permitted another state official, James, to perform
what she believed to be her duties, after being presented
with a form indicating that Sarah was being taken into
custody pursuant to New York Social Service Law § 417
and New York Family Court Act § 1024. CWA did not
need the approval of the Board's employees to effect the
removal, and the Board's employees had no nght to
obstruct the removal.
Moreover, as to the employees' involvement in both the
questioning and removal of Sarah, any implicated Board
policies could not have been a proximate cause of the
claimed wrongs. The information before the Court indicates
the absence of any material fact which calls into question
the propriety of what Murphy and the others at the school
did, or did not do, regarding Sarah's removal,
notwithstanding the previously mentioned depositions of
the individual actors which were conducted by plaintiffs’
counsel. Plaintiffs' statements are purely conclusory,
devoid of factual underpinnings. Moreover, it must be
remembered that the removal by CWA was proper, being
based on probable cause and a reasonably perceived
emergency.
However, plaintiffs' last claim, to wit, that school
employees searched Sarah pursuant to Board policy,
sometime prior to the CWA investigation, is not subject to
summary judgment.
Defendants deny that Sarah was strip-searched by a
school employee. Plaintiffs maintain that, at the very least,
a factual issue exists as to whether such a search occurred.
In support of that proposition, plaintiffs argue the
following:
-A92-
Defendant Williams himself told Mary Tenenbaum
that the school teachers had searched her daughter and
found a bruise on the vagina. (Decl. of Mary
Tenenbaum, § 24.) Sarah Tenenbaum confirmed the
Statement when she told her mother that the teachers
had undressed her. (Decl. of Mary Tenenbaum, q 22.)
Moreover, defendant James testified that kindergarten
teacher Mary Murphy knew of the strawberry
birthmark's on Sarah Tenenbaum's upper leg. (James
Dep. at 25.) Murphy could not have been aware of that
mark unless she had undressed Sarah. (Decl. of Mary
Tenenbaum, § 21.) Williams also said that Murphy had
shown James that birthmark. (Williams Dep. at 70.)
(Pls.' Apr. 23, 1993 Mem. in Opp. at 44-45.)
Rule 56(e) of the Federal Rules of Civil Procedure
provides, inter alia, that affidavits "shall set forth facts as
would be admissible in evidence... ." The question, then,
is what information have plaintiffs provided which may be
considered in determining whether summary judgment is
appropriate, i.e. information that "would be admissible in
evidence"? Nothing in Mary Tenenbaum's Declaration
meets that standard. Her assertions are clearly hearsay. See
Fed. R. Evid. 801. Moreover, what Williams supposedly
said concerning teachers searching Sarah could not be
received in evidence because his statement, if made, would
not be binding on the Board or any of its employees as an
admission, id. at 801(d)(2), or otherwise. The daughter's
Statement similarly is not admissible evidence.
The testimony of James at page 25 of her transcript does
not fully dovetail with plaintiffs' representation as to what
was said at the deposition. Thus, the transcript, unlike the
-A93-
memorandum of law, never refers to "a_ strawberry
birthmark on Sarah Tenenbaum's upper leg." Rather there is
reference to Murphy wanting to show James "something,"
which Murphy said James had already seen, presumably at
the Tenenbaums on the preceding Friday. However,
reading that passage in conjunction with page 70 of
Williams' deposition suggest that Murphy was talking to
James about such a mark. However, there is no evidence in
the record to indicate that Murphy ever personally observed
the mark. Indeed, she testified that she never did see such a
mark. Her testimony on the subject was as follows:
Q When Mrs. James was at the school the day before
on Monday, did you have discussion with her about a
mark on Sarah's thigh?
A I did mention to her that the gym teacher had seen a
red mark on her thigh.
Q Had you ever seen this mark?
A No.
Q When did the gym teacher tell you about the mark?
A Maybe, two or three weeks before.
Q What is the gym teacher's name?
A Clint Eubanks.
Q Is it aman?
A Yes.
Q What did Mr. Eubanks tell you exactly?
-A94-
A That she was playing around in gym and she was
wearing a skirt that day and he noticed that she had a
red mark.
(Murphy Dep. at 36.)
‘The above excerpt from Murphy's deposition creates a
material issue of fact. Defendants deny that Sarah was
strip-searched. Murphy testified that another school
employee, Eubanks, told her that he saw a mark on Sarah's
upper thigh. Mary Tenenoaum has indicated that Sarah
always wore opaque tights to school, thereby precluding
anyone at the school from seeing the mark unless Sarah's
tights were first removed.
Granted, the information furnished by Murphy is second-
hand. Yet, it would be admissible evidence (thereby
satisfying the requirements of Rule 56(e)) as an "admission
by a party-opponent" under Rule 801(d)(2)(D).
For the above reasons, this claim against the Board!* n15
-- which pertains to the SEVENTH CAUSE OF ACTION
in the complaint -- survives defendants' motion for
summary judgment.
IX. State Law Claims
New York provides absolute immunity for state and local
employees when they perform discretionary, as opposed to
ministerial, functions. Tango v. Tulevech, 61 N.Y.2d 34,
'S Plaintiffs have apparently abandoned their initial claim that James
participated in a "strip search" of Sarah. (Compl. at J 102.) Therefore,
the sole remaining targeted defendant -- as the issue was framed in the
summary judgment motions -- is the Board.
-A95-
40, 459 N.E.2d 182, 185, 471 N.Y.S.2d 73, 76 (1983). The
state itself and its subdivisions are also entitled to absolute
immunity when an official performs a discretionary
function. Arteaga v. State, 72 N.Y.2d 212, 216, 527 N.E.2d
1194, 1196, 532 N.Y.S.2d 57, 58-59 (1988). The Court of
Appeals defines "discretionary acts" as those which
"involve the exercise of reasoned judgment which could
typically produce different acceptable results," Tango, 61
N.Y.2d at 41, 459 N.E.2d at 186, 471 N.Y.S.2d at 77.
In Tango, the Court of Appeals held that the decision ofa
probation officer to give custody of two children to one of
their parents was discretionary in nature, and that she was
therefore entitled to absolute immunity. 61 N.Y.2d at 41-
42, 459 N.E.2d at 186, 471 N.Y.S.2d at 76-77. While the
Second Department has held that negligent placement and
supervision of a child in foster care is actionable, Barnes v.
County of Nassau, 108 A.D.2d 50, 487 N.Y.S.2d 827 (2d
Dep't 1985), it specifically distinguished between the
discretionary "decision to remove or not to remove a child
from its parents" and the placement of a child in foster care,
which "must be accomplished in accordance with a
governing rule or standard of reasonable care.” 108 A.D.2d
at 54, 487 N.Y.S.2d at 830. In the present case, Williams
and James exercised their discretion when making the
decision to interview Sarah, remove her from school, and
subject her to a medical examination. Their decisions
involved the exercise of judgment which could reasonably
produce different results. All defendants are therefore
entitled to absolute immunity.
Defendants’ motion for summary judgment is therefore
granted on all of the Tenenbaums' state law claims.
-A96-
CONCLUSION
As to the causes of action alleged in the complaint,
plaintiffs’ application for summary judgment is denied, in
toto and defendants' application is granted in part and
denied in part.
Plaintiffs have established that the invasive physical
examination of Sarah, following her emergency removal,
was violative of the procedural component of the due
process clause of the Fourteenth Amendment, and
constituted a violation of the Fourth Amendment, as well.
However, those defendants who were sued individually
with respect to the medical examination are entitled, as a
matter of law, to qualified immunity. That defense is not
available to the defendant City of New York. Therefore, to
the extent the constitutional deprivations are traceable to a
policy, procedure, or other actionable wrong of the City,
that defendant may be called upon to answer to the
Tenenbaums in damages. In addition, the pre-seizure "strip
search" claim against the Board of Education remains
viable, there being material issues of fact with regard to this
claim. Such being the case, it appears to the court that the
stay imposed by Judge Amon on the Monell claims against
the City of New York and the Board of Education should
be lifted. However, rather than so ordering, sua sponte,
counsel for City and the Board is directed to advise the
Court and plaintiffs' counsel, on or before October 24,
1994, as to whether it opposes plaintiffs pursuing discovery
against the City and Board regarding the remaining claims
and, if so, why. If nothing is received from counsel by that
date, the stay shall be lifted and discovery may proceed.
Defendants' counsel shall submit a proposed order, on
notice, on or before October 24, 1994, indicating, inter alia,
the causes of action, by number in the Complaint, that have
-A97-
survived the motion for summary judgment (i.e. those
pertaining to the medical examination, and the pre-seizure
"strip search" of Sarah), and the complaint numbers of the
causes of actions that have been dismissed, consistent with
this decision.
SO ORDERED.
-A98-
Marc TENENBAUM and Mary Tenenbaum, individually
and on behalf of Sarah Tenenbaum, an infant, Plaintiffs,
¥.
Nat WILLIAMS, individually and as caseworker, Child
Welfare Administration, Veronica James, individually and
as caseworker, Child Welfare Administration, Doby
Flowers, individually, Marva Livingston Hammons, as
Commissioner of Social Services of the City of New York,
Brooke Trent, individually, Claude Meyers, as Deputy
Commissioner of Social Services of the City of New York,
City of New York, and New York City Board of Education,
Defendants.
No. 91-CV-0037 (DRH)
United States District Court,
E.D. New York
907 F. Supp. 606
Nov. 20, 1995.
Lansner & Kubitschek by Carolyn A. Kubitschek and
David J. Lansner, New York City, for Plaintiffs.
Paul A. Crotty, New York City Corporation Counsel by
Bruce Rosenbaum, New York City, for Defendants.
MEMORANDUM AND ORDER
HURLEY, District Judge
Defendants have moved, pursuant to Federal Rules of
Civil Procedure 54(b) and (6)(b) and Civil Rule 3(j) of the
-A99-
Rules of the United States District Courts for the Southern
and Eastern Districts of New York, for reargument and
reconsideration of the portion of this Court's Memorandum
and Order dated September 30, 1994, which held that a
caseworker who has lawfully effected an emergency
removal of a child from her home without a court order
must, nonetheless, provide notice to the parents and obtain
judicial authorization before directing an _ invasive
investigatory medical examination of the child.
Defendants’ motion for reargument is denied as untimely.
However, had reconsideration been granted, the Court
would have adhered to its original decision. Given the
importance of the interests involved in the present
litigation, a two part, disjunctive, analysis has been
undertaken rather than simply concluding the inquiry based
upon the belated nature of defendants’ request.
BACKGROUND
‘The facts, and original concomitant arguments of counsel,
are fully set forth in this Court's decision of September 30,
1994. Familiarity with the contents of that decision will be
presumed for present purposes. By way. of a brief synopsis,
however, the essential facts include the following:
1. On January 9, 1990, the Child Welfare Administration
removed five year old Sarah Tenenbaum from her
kindergarten class at P.S. 230 in Brooklyn, pursuant to the
emergency removal provisions of Family Court Act Section
1024 and Social Service Law Section 417.' The basis for
' New York Family Court Act Section 1024(a)(ii) authorizes removals
in emergency situations where "there is not enough time to apply for a
[court] order . . . ." Social Service Law Section 417 permits "pursuant
to the requirements and provisions of the family court act," a
caseworker to take a child into protective custody, without the consent
-A100-
the emergency removal was probable cause to believe that
the child had been sexually abused by her father.
2. Sarah was taken directly from her kindergarten class to
Coney Island Hospital where she was subjected to a
gynecological examination. It is undisputed that the sole
purpose of that examination was to determine whether
sexual abuse had occurred. No claim has been advanced,
directly or indirectly, that the examination was related to
necessary medical care or treatment of the child following
assumption of custody by the Child Welfare
Administration.
3. The results of the gynecological examination were
negative and the child was reunited with her parents later
that day.
4. No efforts were made by the Child Welfare
Administration to obtain judicial authorization for the
invasive examination of Sarah, nor to obtain parental
consent, or to otherwise notify the parents of what was
transpiring until after the fact.
Sarah's parents filed a complaint, pursuant to 42 U.S.C.
Section 1983, alleging a myriad of constitutional violations
committed by defendants against them and their daughter.
The defendants answered that their conduct was in full
conformity with applicable law and even if, arguendo, that
was not the case, the individual defendants were insulated
from liability pursuant to the doctrine of qualified
immunity.
of a parent, if there is reasonable cause to believe that the failure to do
so will present "an imminent danger to the child's life or health.”
-Al101-
The Court, in its decision of September 30, 1994, granted
defendants’ application for summary judgment in large
measure, but denied it in part. Plaintiffs' cross-motion for
summary judgment was denied in toto. The partial denial of
the defendants’ motion was premised on the Court's
conclusion that plaintiffs had established, based on the
uncontroverted facts, that the invasive physical
examination of Sarah, following her emergency Section
1024 removal, was violative of the due process clause of
the Fourteenth Amendment, and constituted a violation of
her Fourth Amendment rights as well.
The individual defendants were found to be entitled, as a
matter of law, to qualified immunity under the facts as
presented and, accordingly, the claims against them were
dismissed. That defense, of course, is not available to the
City of New York. Therefore, if the constitutional
deprivations are traceable to a policy, procedure or other
actionable wrong of the City, that defendant may be called
upon to answer in damages. For that reason, defendants’
motion for summary judgment dismissing the claims
against defendant City of New York was denied.” n2
POSITIONS OF PARTIES RE: MOTION
FOR RECONSIDERATION
In seeking reargument and reconsideration, defendants
rely primarily on the following three argumevts:
? In addition to the plaintiffs’ claims against the City of New York, a
claim against defendant Board of Education survived defendants'
application for summary judgment. That claim -- which is not germane
with respect to the present motion — involves a disputed issue of fact as
to whether Sarah was subjected to a strip search by school employees
sometime before she was taken into protective custody by the Child
Welfare Administration on January 9, 1990.
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1. the Court failed to consider Social Services Law
Section 383-b (entitled "Medical Treatment for Abused or
Neglected Children; Consent of Commissioners") which,
defendants maintain, rendered prior judicial approval or
parental consent unnecessary for the gynecological
examination of Sarah;
2. the Court's reliance on van Emrik v. Chemung County
Dep't of Social Serv., 911 F.2d 863 (2d Cir. 1990) was
misplaced, inter alia, because the removal of the child in
van Emrik occurred after, not before, the investigatory
medical procedure was conducted. In contrast, the
emergency removal in the present case occurred before the
examination. That distinction, or so defendants’ argument
continues, renders the analysis in van Emrik irrelevant for
present purposes; and
3. the Court's decision is factually flawed for it fails to
consider the bureaucratic complexities of Family Court
practice in the five boroughs of New York City.
In opposition to the relief requested by defendants,
plaintiffs argue that:
1. defendants’ motion is untimely under Civil Rule 3(j) of
the Rules of the United States District Courts for the
Southern and Eastern Districts of New York and,
accordingly, must be denied;
2. defendants’ motion is also subject to summary denial
for improperly advancing new facts, issues and arguments
not previously presented to the Court;
3. if the Court grants reargument, it should uphold its
prior decision because, inter alia:
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a) the Court's reliance on the rationale of van Emrik was
appropriate; and
b) defendants' belated, improper reliance on alleged
bureaucratic difficulties in implementing this Court's initial
order, misstates the operative facts, and also seems to be
premised on the flawed notion that due process should be
adjusted to dovetail with established administrative
procedures rather than vice versa.
Attention will now be directed to the arguments of
counsel, beginning with plaintiffs' claim that defendants’
application for reargument and reconsideration is untimely.
DISCUSSION
A. Defendants' Motion for Reargument is Untimely
I. Date of Motion
On November 25, 1994, defendants filed a motion
pursuant to Federal Rules of Civil Procedure "54(b) and
6(b) and Local Civil Rule 3(j), for reconsideration and
reargument, on the grounds that in its Memorandum and
Order dated September 30, 1994 . . . the Court overlooked
material facts and controlling authority . . . ." (Defs.' Mot.
at 1.)
II. Motion for Reargument and Reconsideration
Federal Rule of Civil Procedure 54(b) ("Rule 54(b)")
provides, in relevant part, as follows:
Any order or other form of decision . . . which
adjudicates fewer than all the claims or the nights and
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Seca rQN""arumr_-
liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to
revision at any time before the entry of judgment
adjudicating all the claims and the nghts and liabilities
of all the parties.
Local Civil Rule 3(j) ial the following time frame
and standards for a motion for reargument:
A notice of motion for reargument shall be served
within ten (10) days after the docketing of the court's
determination of the origi
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