Opposition Brief — City of New York v. Tenenbaum

Supreme Court, U.S.

FILED

(Zy MAR 92 2 >A

No. 99-1419

— a ae

In The

Supreme Court of the United States

*

NEW YORK CITY, MARVA LIVINGSTON HAMMONS,

as Commissioner of Social Services of the City of

New York, and CLAUDE MEYERS, as Deputy

Commissioner of Social Services of the City of New York,

Petitioners,

-against-

MARC TENENBAUM and MARY TENENBAUM,

individually and on behalf of

SARAH TENENBAUM, an infant,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

°

RESPONDENTS’ BRIEF IN OPPOSITION

¢

CarROLyn A. KusBitsCHEK

Counsel of Record

LANSNER & KUBITSCHEK

325 Broadway, Suite 201

New York, New York 10007

(212) 349-0900

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

SO SP a os 8.5 hn nds nseiecincccvacee i

pee es Pre ii

STATEMENT OF FACTS AND OF THE CASE...... 1

eo, PURPOSE PTET ITTTT TT TTTere rere es 1

PPI e VEST PE TT Tey ree Tee Te TERT TET ee eee Tee 3

REASONS WHY THE PETITION SHOULD BE

NET Ss 0484.0 iu cee cceGN Gna vibbeeasicdenntaatn 11

A. The Petition presents questions of fact, which are

not appropriate for this Court................. 11

1. The removal of Sarah Tenenbaum from her

POTOMES 2. cece ccccccccccccccccccsccseccccs 11

2. The search of Sarah Tenenbaum’s body .... 13

B. Neither the decision below nor the record raises

TD GOTTEN BONING oo 5s ode ces cccscvawenns 15

1. The removal of Sarah Tenenbaum from her

| PEP EV ETT TEE TTTIUTOLET TTT Tee ETT 15

2. The search of Sarah Tenenbaum’s body..... 19

ee SE 8 | POPES TEST TEC PORT COLT CTE TELE TET eT ee 21

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ........... 20

Armstrong v. Manzo, 380 U.S. 545 (1965)............. 19

Catanzaro v. Weiden, 140 F.3d 91 (2d Cir. 1998) ...... 11

Chalkboard, Inc. v. Brandt, 902 F.2d 1375 (9th Cir.

i) ST yr ry ere 11

Croft v. Westmoreland County, 103 F.3d 1123 (3rd

Che. 1900) ...0kkkcecansuuaueneeesneeeenueeeees as 16

Davis v. United States, 417 U.S. 333 (1974) ........... 20 :

Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1976) .... 17 i

Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994)...... st, 7

Malik v. Arapahoe County Department of Social Ser-

vices, 191 F.3d 1306 (10th Cir. 1999)............... 16

Morris v. Dearborne, 181 F.3d 657 (5th Cir. 1999)..... 16

Miller v. Campbell County, 945 F.2d 348 (10th Cir.

|) Re ee ae 11

Monell v. Department of Social Services, 436 U.S. 658

CASE) . ooo cccenctcccnane eee eeeaeniaer DGwadry shane 1

Santosky v. Kramer, 455 U.S. 745 (1982).............. 16

Stanley v. Illinois, 405 U.S. 645 (1972)................ 16

van Emrik v. Chemung County Department of Social

Services, 911 F.2d 863 (2d Cir. 1990)............... 20

Vinson v. Campbell County Fiscal Court, 820 F.2d 194

COG Cie UP is conc cuncnscuueeeen eesss eerie 16

Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000)....... 17

Zinermon v. Burch, 494 U.S. 113 (1990)............... 12

es eT |

ill

TABLE OF AUTHORITIES - Continued

Page

STATUTES

ES ae ee ee ee ee eT 1

ee Ws Ge, PRE OD TIA) eo iss ceca vscacecnsipenss 9

i | En a 9

ee i ci nas been ae cde nes nceeseeeesean 4

oe ae Oe ee rrr 5

OTHER AUTHORITY

New York State Central Register Reporting Highlights

ap AE Se ae ee GPa on a 5

STATEMENT OF FACTS AND OF THE CASE

Procedural History

Petitioners’ statement of facts, which is very much

skewed toward their point of view, neglects to inform this

Court that the facts are very much in dispute because of

the procedural posture of the case. Indeed, Petitioners

have entirely omitted the procedural posture of the case

from their discussion.

Respondents Marc, Mary, and Sarah Tenenbaum,

who were the plaintiffs in the District Court, sued the

City of New York and several of its child welfare

employees and officials under 42 U.S.C. § 1983. The Ten-

enbaums claimed that the defendants violated their con-

Stitutional rights based upon two separate incidents.

First, defendants removed five-year-old Sarah from the

custody of her parents shortly before noon on January 9,

1990. (A12)! Second, defendants subjected Sarah to a

search, in the form of an intrusive gynecological examina-

tion, on the afternoon of the same day. (A12) Defendants

did not seek or obtain court orders for either of those -

actions. (A4)

The District Court stayed discovery on plaintiffs’

claims against the City and its Commissioners, the so-

called “Monell claims.” (A63) See, Monell v. Department of

Social Services, 436 U.S. 658 (1978). Discovery proceeded

only as to the individual defendants — child welfare case-

worker Veronica James and her supervisor Nat Williams,

who are not parties in this Court. At the conclusion of

' “A” refers to pages in the Appendix to the Petition for a

Writ of Certiorari.

discovery, all defendants moved for summary judgment,

despite the absence of discovery as to the City of New

York and its Commissioners. (A63)

The District Court granted the defendants’ motion

for summary judgment on all of the plaintiffs’ claims

regarding defendants’ removal and detention of Sarah

Tenenbaum. (A13) The court found that the individual

defendants were entitled to qualified immunity on the

claims regarding the search of Sarah’s body. (A13) How-

ever, the court denied the motion as to the plaintiffs’

claims against the City and Commissioners, and directed

that that portion of the lawsuit proceed. Contrary to

Petitioners’ statement (P8)2, the District Court did not

grant summary judgment in favor of plaintiffs on any

issue. (A13)

When the Tenenbaums sought discovery on the

Monell claims regarding the search of Sarah’s body, Peti-

tioners stipulated that they have a policy of conducting

searches of children - in the form of medical examina-

tions - for purely investigative purposes. (A1l4, A24)

Thus, the City conceded liability on the search of Sarah,

at least for the purposes of the present litigation. The case

went to trial on damages only. (A14)

On appeal, the Second Circuit affirmed the District

Court on all questions involving the search of Sarah

Tenenbaum’s body. (A5) The Second Circuit reversed the

District Court’s grant of summary judgment to defen-

dants on plaintiffs’ claims regarding the removal of Sarah

Tenenbaum from her parents. (A5) The Second Circuit

2 “P” refers to pages in the Petition for Writ of Certiorari.

ruled that the individual defendants had qualified immu-

nity on the claims that they violated the Constitution in

removing Sarah from her parents without due process of

law. (A5) With regard to the Tenenbaums’ claims against

the City and its Commissioners for the unconstitutional

separation of the parents and child, the Second Circuit

found that “a properly instructed jury could conclude

that at the time the caseworkers decided to remove Sarah,

there was reasonably sufficient time, entirely consistent

with Sarah’s safety, to seek a court order.” (A19) Accord-

ingly, the Second Circuit remanded, for further proceed-

ings, the Tenenbaums’ claims against the City and

Commissioners regarding the removal of Sarah. (A44)

The Second Circuit has stayed its mandate pending the

outcome of the case in this Court.

Thus, there are two separate claims: the claims

against the City for the search of Sarah Tenenbaum,

which have been litigated to conclusion, and the claims

against the City for the removal of Sarah from her par-

ents, which are still in the discovery stage.

Facts

Employees of Petitioners City of New York, Ham-

mons, and Meyers removed Sarah Tenenbaum, a develop-

mentally delayed five-year-old girl (A6), from her parents

and subjected her to a body cavity search (A12) as a result

of a discredited allegation (A12) against her father only,

made by an inexperienced teacher. Sarah was removed,

not to protect her from immediate danger (A28), but in

order to conduct an investigatory search (A27) of her

most private body parts. The course chosen by Petitioners

- having a stranger summarily remove the girl from

school and take her to a city hospital emergency room -

was the most traumatic method of obtaining information

(see A27), the most intrusive and least observant of con-

stitutional rights (see A26), and was nothing more than a

shocking display of raw governmental authority. Acting

pursuant to standard City procedure (A11), the City

employee who decided to remove and search Sarah, and

the caseworker who carried out the removal and search,

did not seek or obtain judicial approval for either the

removal or the search (A12), although they had ample

time to do both. (A19, A28)

The events began on Friday, January 5, 1990, when

the New York State Central Register of Child Abuse and

Maltreatment (the “Register”) received a telephone com-

plaint of suspected child abuse regarding plaintiff Sarah

Tenenbaum, then five years old, from Susan Raiten, a

guidance counselor at Sarah’s school. (A7) The same day,

the Register faxed a written version of the complaint to

New York City’s Child Welfare Administration (“CWA”)

(A7). The written document said that “Sarah is speech

and language delayed. Sarah unable to stay awake during

the day. Ch{ild] is nervous and withdrawn. Ch[ild] is

afraid of fa[ther]. Fa[ther] hurts her vaginal area at

night.” (A7) The Register designated plaintiff Marc Ten-

enbaum, Sarah’s father, as the alleged perpetrator.

Sarah’s mother, plaintiff Mary Tenenbaum, was not listed

as a perpetrator. (A90)

N.Y. Soc. Serv. L. § 423 requires that every complaint

of suspected child abuse or maltreatment which the Reg-

ister receives must be fully investigated. Defendant Nat

Williams, a supervisor with CWA, was assigned to the

nin

Tenenbaum investigation, and he in turn assigned defen-

dant Veronica James to carry out the investigation. (A7)

Neither Williams nor James are parties in this Court.

Williams and James had many reasons to treat the

report with a degree of skepticism. In the State of New

York, approximately two-thirds of the complaints which

the Register receives turn out, upon investigation, to be

completely groundless or “unfounded,” i.e., not sup-

ported by any credible evidence whatsoever. N.Y. Soc.

Serv. L. § 424(11); New York State Central Register Reporting

Highlights 1974-88, Table 10 (reproduced in Joint Appen-

dix to Second Circuit, pp. A.171-73) Moreover, they did

not know whether the informant was reliable.

Contrary to the implication of Petitioners’ statements

(P5-6), Sarah’s problems in school were a direct result of

her developmental delays and not of any sexual abuse.

Sarah’s teacher Mary Murphy, a second-year teacher, was

not sufficiently experienced to recognize that Sarah

should never have been placed in a mainstream kinder-

garten class or to realize that that error was the cause of

her problems in school.

If Williams was skeptical, he concealed his reserva-

tions from James. When he assigned the Tenenbaum com-

plaint to James, Williams told her to investigate Marc

Tenenbaum for possible sexual abuse of his daughter, but

instructed her to conceal that allegation from both of the

Tenenbaums. (see A8)

On Friday, January 5, 1990, Williams sent caseworker

Tom O’Connell with James to the Tenenbaum home. (A8)

Both of the Tenenbaums were home, as were Sarah and

6

her younger brother Aaron. (A8) James told the Tenen-

baums that CWA had received a report that Sarah was

sleeping in school and was developmentally delayed.

(A8) Marc Tenenbaum explained that the family had an

ongoing dispute with the school over plans for Sarah’s

education. (A60) The Tenenbaums had initially ques- |

tioned, and recently vetoed, the school’s plans to transfer

Sarah to a Special Education class in a different school.

Moreover, concerned about Sarah’s development, the

Tenenbaums had obtained comprehensive evaluations

and treatment for Sarah’s developmental problems at

Maimonides Hospital. (A60) Those problems included

elective mutism, the inability to speak outside the home.

(A6)

The Tenenbaums thus definitively refuted any

charges that they were neglecting Sarah’s educational or |

developmental problems, specifically disproving the |

school’s charges. (A60) In addition, the Tenenbaums dem-

onstrated a motive on the part of school staff to misjudge

the family, whom the school found insufficiently deferen-

tial. (A60)

The Tenenbaums informed James about the children’s

health and, when requested, signed releases for their

doctors’ records. (A8) They gave James a tour of the

house. James found the house neat and well cared for.

(A8)

Although James had the power to remove children in

emergency situations, she left Sarah at home when she

departed from the Tenenbaum home (A8), obviously con-

cluding that Sarah was in no immediate danger. Despite

ee ME TN eae: ine ee mS |

the availability of emergency caseworkers, CWA took no

further action over the weekend. (A9)

On Monday, January 8, 1990, James went to Sarah’s

school (A9) and learned for the first time that the person

who had allegedly heard of the sexual abuse from Sarah

was not Raiten but Mary Murphy, Sarah’s kindergarten

teacher. (A9) Murphy reiterated what had happened the

week before: from Sarah’s nodding, in response to a

series of leading questions, Murphy felt that she had

ascertained that Sarah was being bothered by something

at home related to her father. (A6, A9) Sarah had also

been playing with a doll; and when Murphy approached

her to ask her where, on the doll, Sarah was being hurt,

Sarah pointed to the doll’s groin area. (A6) Not once did

Sarah utter a word to Murphy. (A6)

By the time James came to the school for investiga-

tion, she knew that Sarah suffered from elective mutism.

(See A7) That fact alone should have caused James to

question the veracity of Murphy’s claim that Sarah had

“told” Murphy about sexual abuse on the previous Fri-

day. Moreover, James knew or should have known that

young children are extremely suggestible and, in

responding to leading questions, are likely to give

answers that they believe the adults want to hear.

James then questioned Sarah about the alleged abuse.

(A9) Sarah did not answer any of her questions. (A9) In

fact, she did not speak to James or Murphy. (A9) Unde-

terred, James asked Murphy to recreate the events of the

prior Friday and to show James exactly what Murphy had

done to obtain answers from Sarah. (A9) The rerun of the

experiment yielded results contrary to those that Murphy

had supposedly observed on Friday. When Murphy asked

Sarah, in front of James, whether Sarah’s father touched

her near the vagina and hurt her, Sarah shook her head

“No.” (A9) Thus, James had even less reason to believe

that Sarah had been abused than she had before the visit.

(A9)

Although the Tenenbaums had signed releases, James

and Williams made no attempt to speak to Sarah’s pedi-

atrician about possible abuse. Nor did they examine

Sarah’s school records, which documented her develop-

mental delays. Instead, when James advised Williams

what had happened at school, including the fact that

- Sarah had responded negatively to questions about sex-

ual abuse (A9), Williams told James to remove Sarah from

school the next day (Tuesday) and bring her to Coney

Island Hospital to be examined for sexual abuse. (A10)

While Williams instructed James on Monday after-

noon to remove Sarah. (A10), neither Williams nor James

Saw any need to proceed with the removal that afternoon,

from either the school or home, nor to have Petitioners’

Emergency Children’s Services unit make a removal in

the evening or nighttime. (A10) Petitioners misstate the

facts in claiming that Williams waited until Tuesday to

make the decision to remove Sarah (P21) and that the

Situation changed between Monday and Tuesday. (P21)

While Petitioners argue that when the decision was

made is unclear and not relevant (P22 n1), the testimony

of both Williams and James shows that the decision was

made on Monday afternoon. (A10) Although Petitioners

argue that it takes more than a day to get a court order

(P28), the City has conceded that they could get an order

the same day (All n7), and Williams knew that. (A11)

Petitioners’ attempt to justify Williams’ decision

(P20-22) has required them to invent facts which do not

exist. They seek to justify his delay in acting on an

“emergency” by claiming that he was waiting for a call

from the parents. (P21) They seek to buttress his decision

by claiming that an important element in that decision

was his perception “that the Tenenbaums took the allega-

tion of sex abuse so lightly that they did not even call

him.” (P22) Petitioners completely omit the fact that, as

both sides admitted below, the Tenenbaums were not

aware of any such allegation. (A8) The caseworkers who

had the sole contact between CWA and the Tenenbaums,

at a visit to the home on Friday night, had concealed from

the Tenenbaums, at Williams’ explicit instructions, all

information that the report concerned alleged sexual

abuse. (A8) Thus, Petitioners seek to justify Williams’

actions by the failure of the Tenenbaums to respond to

information that Williams had withheld from them. (P21,

A10-n4) :

Williams did not seek judicial authorization prior to

removing Sarah, despite the fact that New York law

requires CWA to do so. N.Y. Fam. Ct. Act §§ 1022(a);

1027(a). Moreover, Petitioners concede that those steps

can be accomplished in one day. (A11 n7) Despite consti-

tutional and statutory requirements to do so, Williams

stated that he had rarely gone to court before removing a

child. (A11) City policy was to remove children first, and

seek court orders later.

10

On Tuesday morning, January 9, 1990, James

removed Sarah from school. (A12) James took Sarah to

Coney Island Hospital, where they waited three or four

hours because James, in accordance with CWA practice,

had not made an appointment. (A12) Finally, Sarah was

seen and subjected to two examinations, one by a pedi-

atrician, the other by a gynecologist. Sarah was stripped

and subjected to a body cavity search, including an

inspection of her vagina and surrounding area, as well as

penetration of her vagina and anus with Q-tips. (A12)

That was the first time in her life that Sarah had under-

gone a gynecological exam. (Mary Tenenbaum Trial Tran-

script, p. 10, reproduced at Joint Appendix in Second

Circuit, p. A.532) No evidence of sexual abuse was dis-

covered. (A12)

Several hours after Sarah was removed from school

and while she and James were at the hospital, Williams

contacted Mary Tenenbaum. (A12) Mrs. Tenenbaum left

her job immediately and went to Williams’ office, stop-

ping only to call her husband. (A12)

Williams stated that CWA had taken Sarah and that

the Tenenbaums would not get Sarah back. (A62) When

Mary Tenenbaum defended her husband, Williams told

her that she was an unfit mother. (A62)

Eventually, James returned from Coney Island Hospi-

tal with Sarah and the doctors’ report. (A62) Williams

reviewed the report and decided not to make a charge of

sexual abuse. (A62) In fact, the City determined that the

allegations of sexual abuse were “unfounded,” i.e., that

there was no credible evidence to support them. Between

11

7:30 and 8:30 PM, Williams released Sarah to the Tenen-

baums. (A12)

The City conceded that it had a standard practice of

performing medical examinations on children whom they

had removed, to investigate for possible abuse, without

seeking prior approval from a court. (All, A24)

¢

REASONS WHY THE PETITION SHOULD BE DENIED

A. The petition presents questions of fact, which

are not appropriate for this Court.

1. The removal of Sarah Tenenbaum from her

parents

The first question for review, when stripped of all the

excess verbiage, is: was Sarah Tenenbaums situation an

emergency? As Petitioners themselves stated, “The -rele-

vant question is whether there is an ‘emergency’ at the

time the decision is made to remove a child.” (P22-23)

That question is one of fact, and is therefore inappropri-

ate for this Court. Jordan v. Jackson, 15 F.3d 333, 347 (4th

Cir. 1994): “Whether the child is subject to imminent

danger to his life or is in imminent danger of irreparable

injury to his health is a sharply focused factual deter-

mination . . . ”; Catanzaro v. Weiden, 140 F.3d 91, 94 (2d Cir.

1998): “the existence vel non of an emergency is an issue

of material fact . . . ”; accord, Miller v. Campbell County,

945 F.2d 348, 353 n. 8 (10th Cir. 1991); Chalkboard, Inc. v.

Brandt, 902 F.2d 1375, 1381 (9th Cir. 1990): the question as

to whether an emergency existed, which vitiated the pre-

12

deprivation hearing requirement of due process, could

not be resolved on summary judgment.

A close reading of the petition for certiorari itself

demonstrates the fact-sensitive nature of this particular

case. Petitioners cannot even agree among themselves as

to what constitutes an emergency. They conceded at oral

argument in the Second Circuit that they could have

gotten a court order the same day. (All n7) Indeed,

Williams had testified that he could file papers in court,

present a case to a judge, and obtain judicial approval (or

disapproval) within one day. (All, A61, A68) Neverthe-

less, Petitioners now say that they would have to wait

several days to get a court order, and that would be

harmful to children. (P28) That assertion is belied by the

record below and is simply a scare tactic.

The law is clear that when the government seeks to

deprive an individual of liberty, the government must

provide due process of law in the form of a pre-depriva-

tion hearing. The state must provide a pre-deprivation

hearing, i.e., a hearing before the removal of the child,

whenever the state “feasibly can provide” one. Zinermon

v. Burch, 494 U.S. 113, 132 (1990). Indeed, Petitioners

concede that only in “ ‘emergency’ circumstances” may

the City act “without either parental consent or a prior

court order.” (City Reply Brief to Second Circuit p. 36)

In arguing that the “emergency” still existed on Tues-

day even if they did not make the removal on Monday

(P21), Petitioners miss the point of the Second Circuit's

decision: the decision not to remove Sarah on Monday

gave them sufficient time to provide a pre-deprivation

hearing, i.e., to go to court to seek an order.

a

13

Petitioners’ attempt to justify the decision to seize

Sarah (P20-21) has required them to invent facts. They

seek to justify Williams’ delay in acting on an “emer-

gency” by claiming that he was waiting for a call from the

parents. (P20-21) They also seek to buttress Williams’

decision by claiming that he had more information on

Tuesday, which constituted an important element in his

decision, to wit: his perception “that the Tenenbaums

took the allegation of sex abuse so lightly that they did

not even call him.” (P21) Petitioners completely omit the

fact, which was admitted by both sides, that the Tenen-

baums were never aware of any such allegation.

The procedural protections afforded by Due Process

clause of the Fourteenth Amendment are not for the

benefit of parents only. Most importantly, those pro-

cedural protections benefit the children. Contrary to Peti-

tioners’ assertions, removing children from parents is not

a safer course. As the District Court found, Sarah was

“abused” by the examination and suffered trauma. The

Same was true of her removal from school and home.

Removing a child without due process is not a “safer

course.” The District Court found that Sarah suffered

psychological injury as a result of the examination. (A27)

The same was true of her removal from school and par-

ents.

2. The search of Sarah Tenenbaum’s body

Petitioners now claim that their search of Sarah Ten-

enbaum’s body, in the form of a gynecological examina-

tion, was justified under the Constitution because it “was

14

not merely forensic but was also medical” (P26), i.e.,

because Sarah might have needed medical treatment.

(P25, P26) That argument must fail for two reasons.

First, Petitioners never claimed such a justification in

the District Court. (A101) On the contrary, as the District

Court found, “no claim has been advanced, directly or

indirectly, that the examination was related to necessary

medical care or treatment of the child... . ” (A101)

Rather, the exam was “solely for investigative purposes”

(A74); “Williams unambiguously so testified.” (A27) In

claiming that the exam was for medical as well as investi-

gative purposes, Petitioners impugn the motives of their

own employee who ordered that exam. They also have

tried to invent facts that do not exist.

Second, Sarah’s parents were perfectly capable of

obtaining medical treatment for her if she needed it. Her

mother, a nurse, would have been a far better person to

accompany Sarah than defendant Veronica James, who

was a stranger to the child. Likewise, it would have been

better for Sarah to be examined by her own pediatrician,

whom she knew and trusted, than by a strange male

doctor. Finally, if Sarah had actually needed medical

treatment, Petitioners’ four-day delay in obtaining that

treatment was all the more inexcusable. 2

Petitioners’ closing argument, that they must choose

between performing examinations or not protecting chil-

dren, is false and confuses the issue. (P30-31) The choice

is not theirs to make, but rather lies in the sound judg-

ment of a neutral magistrate. Providing due process of

15

law to all persons, is the best way to safeguard individ-

uals from overzealous investigators and the resultant dis-

ruption of family autonomy.

B. Neither the decision below nor the record raises

the questions presented.

1. The removal of Sarah Tenenbaum from her

parents

Petitioners claim that they removed Sarah because

the situation was an emergency, or rather that their

employee Nat Williams “reasonably perceived” the situa-

tion as an emergency. (P21) The facts do not raise that

issue.

The only Petitioners here are the City of New York

and its Commissioners - Marva Hammons and Claude

Meyers. None of the Petitioners were personally involved

in the removal of Sarah Tenenbaum. The individuals who

were personally involved - caseworker Veronica James

and supervisor Nat Williams - are not part of the case.

The Second Circuit ruled that both of them were entitled

to qualified immunity because the law was not clearly

established at the time. (A22)

The only remaining claims are plaintiffs’ claims that

the City and its Commissioners had an unconstitutional

policy or practice of removing children from their parents

without providing pre-deprivation hearings, and that the

City implemented that policy routinely, whether or not

the City had sufficient time to provide a pre-deprivation

hearing, i.e., time to go to court and seek a court order to

0 ee

6

remove the children. The Second Circuit found that pol-

icy or practice to be unconstitutional. (A24)

The Second Circuit’s decision is consistent with

clearly established law. This Court has repeatedly upheld

the requirement that the state provide notice and an

opportunity to be heard when it seeks to interfere with

the parent-child relationship. Thus, in Stanley v. Illinois,

405 U.S. 645, 658 (1972), this Court held: “parents are

constitutionally entitled to a hearing on their fitness

before their children are removed from their custody.”

And in Santosky v. Kramer, 455 U.S. 745, 753-54 (1982), this

Court likewise held: “When the state moves to destroy

weakened familial bonds, it must provide the parents

with fundamentally fair procedures.”

Nor is there a split in the circuits. On the contrary,

the Courts of Appeals which have considered the ques-

tion have all held that “a parent has a liberty interest in

familial association and privacy that cannot be violated

without adequate pre-deprivation procedures.” Malik v.

Arapahoe County Department of Social Services, 191 F.3d

1306, 1315 (10th Cir. 1999). Accord, Wallis v. Spencer, 202

F.3d 1126, 1137 (9th Cir. 2000): “the Fourteenth Amend-

ment[ ] guarantee[s] that parents and children will not be

separated by the state without due process of law except

in an emergency”; Croft v. Westmoreland County, 103 F.3d

1123, 1125 (3rd Cir. 1997): “The Due Process Clause of the

Fourteenth Amendment prohibits the government from

interfering in familial relationships unless the govern-

ment adheres to the requirements of procedural and sub-

stantive due process”; Morris v. Dearborne, 181 F.3d 657,

669 n. 7 (5th Cir. 1999); Vinson v. Campbell County Fiscal

Court, 820 F.2d 194, 200 (6th Cir. 1987): “plaintiff’s interest

17

in the physical custody of her children could not be

terminated without compliance with the requirements of

due process”; Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir.

1994): “Where the state seeks to interfere with . . . pa-

rental rights, its action must satisfy the procedural stric-

tures of the Due Process Clause.”

In this Court, Petitioners do not challenge the Second

Circuit’s ruling that their policy was _ unconstitutional.

Instead, Petitioners claim that their employees reasonably

believed that the situation involving Sarah was an emer-

gency, thus justifying their failure to provide Sarah and

her parents with pre-deprivation hearing. (P21)

The Tenenbaums agree that, in emergency situations

where there is not sufficient time to provide a pre-depri-

vation hearing, the State may satisfy requirements of

procedural due process by providing a prompt post-

deprivation hearing. See, e.g., Duchesne v. Sugarman, 566

F.2d 817 (2d Cir. 1976). However, that issue is not before

this Court. Petitioners have already conceded that their

employees had sufficient time to provide the Tenenbaums

with due process of law. (All n7) The claim now set out

in the petition for certiorari that those employees lacked

sufficient time to seek a court order was not raised below,

and is consequently not appropriate for review by this

Court. Their decision to remove Sarah, which was made

on Monday but not implemented until Tuesday, gave

them sufficient time to go to court to seek an order. (A19)

Petitioners curiously assert that “[i]t is disingeuous

of the majority in the Court of Appeals to suggest that the

decision [to remove Sarah] could have or should have

been made on Monday.” (P21) The Second Circuit did not

“suggest” that Petitioners could have or should have

decided to remove Sarah on Monday. Rather, the Court

found that the evidence would support the conclusion

that Petitioners’ employee Nat Williams actually did

make the removal decision on Monday. (A10)

Petitioners have already admitted that removing chil-

dren without orders was their standard practice. At oral

argument in the Second Circuit, counsel for Petitioners

stated categorically that their caseworkers “do it rou-

tinely. That is the policy.” (A11)

Although they fail to raise their key argument explic-

itly, what Petitioners implicitly seem to be claiming is

that they should never have to provide due process of

law in connection with the removal of children from

parents, i.e., that they should not have to provide either

pre-deprivation hearings or post-deprivation hearings.

The suggestion of that position is contained in Peti-

tioners’ statement that “[i]t falls upon the child welfare

workers to effectuate the appropriate balance between

these competing interests [of upholding the constitu-

tionally protected interest in the family relationship and

of protecting children from abusive parents].” (P20-21)

Respondents submit that striking an appropriate bal-

ance between competing interests is not an appropriate

function of a child welfare worker. On the contrary, that

is the basic function of the judiciary, the end toward

which due process of law strives. Due process of law, in

the form of notice and an opportunity to be heard, guar-

antees that such_a decision will be made by a neutral

magistrate, upon consideration of all relevant facts and

19

arguments. See, Armstrong v. Manzo, 380 U.S. 545, 550

(1965).

2. The search of Sarah Tenenbaum’s body

Petitioners’ second question is based upon the pur-

ported factual premise that the medical examination of

Sarah Tenenbaum was “objectively medically indicated.”

The facts of the case are to the contrary.

The District Court found that “[i]t is undisputed that

the sole purpose of the 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.” (A101) Indeed, Petitioners themselves

acknowledged that they ordered an examination of Sarah

Tenenbaum solely for investigative purposes, not for

medical purposes. They stated categorically that “[t]he

medical examination conducted at the request of CWA

was for investigative purposes to. determine if Sarah had

been sexually abused; it was not conducted to provide

her with medical treatment.” (Memorandum of Law in

Support of Defendants’ Motion for Summary Judgment,

p. 23, reproduced in Supplemental Appendix to the Sec-

ond Circuit, p. SA-24)

With regard to the medical examination of Sarah

Tenenbaum, as with the removal of Sarah from her par-

ents, Petitioners do not claim that there is a split among

the circuits. Rather, Petitioners appear to be claiming that

20

the Second Circuit decision conflicted with a prior deci-

sion of the circuit, van Emrik v. Chemung County Depart-

ment of Social Services, 911 F.2d 863 (2d Cir. 1990).

(Petitioners incorrectly assert that van Emrik was a deci-

sion by “this Court.” (P24, P30)) Thus, Petitioners assert

that the Second Circuit should have distinguished van

Emrik instead of adhering to it. (P26, P30)

The alleged failure of a court of appeals to follow its

own precedents is not a basis for review by this Court.

See, e.g., Davis v. United States, 417 U.S. 333, 340 (1974).

Moreover, the Second Circuit declined to grant en banc

review of the instant action. (A126) In so doing, the

Second Circuit implicitly indicated that it did not con-

_ Sider its decision in the instant case to conflict with its

prior decision in van Emrik.

Petitioners argue, at length, that it was “reasonable”

for Nat Williams to remove Sarah Tenenbaum and subject

her to an intrusive medical examination. (P21-23) Those

claim is not properly before this Court.

In arguing that an individual defendant acted reason-

ably, the Petitioners are in fact alleging that Williams is

entitled to qualified immunity from liability. See, Ander-

son v. Creighton, 483 U.S. 635, 641 (1987). Williams, who is

not a Petitioner in this Court, has already been found by

the District Court and the Court of Appeals to have

qualified immunity. (A88, A40-41) Because the Court of

Appeals found that the law was not clearly established,

the Court did not reach the question of whether Williams’

actions were objectively reasonable. As Williams is not a

21

Petitioner here, the reasonableness of his actions is not

before this Court.

e

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

CaROLYN A. KuBITSCHEK

LANSNER & KuBITSCHEK

Counsel of Record for Respondents

325 Broadway, Suite 201

New York, New York 10007

(212) 349-0900