Opposition Brief — Kia P. v. City of New York

No. 00-1800 / JUL S$ 200

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IN THE !

Supreme Court of the United States

KIA P., individually and on behalf of MORA P., an infant,

and MORA P.,

Petitioners,

V.

ROSEMARY McINTYRE, individually and as the Caseworker,

Child Welfare Administration, et ai.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENTS

LONG ISLAND COLLEGE HOSPITAL

AND SUSAN MORANCE

ae

a

JENNIFER E. BIENSTOCK

Counsel of Record

LAWRENCE D. BLOOMSTEIN

AARONSON, RAPPAPORT, FEINSTEIN

& Deutscu, LLP

Attorneys for Respondents

Long Island College Hospital

and Susan Morance

757 Third Avenue

New York, New York 10017

(212) 593-6700

167922 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

CORPORATE DISCLOSURE STATEMENT

In accordance with Rule 29.6, Long Island College

Hospital states that it is a Voluntary Corporation that is

operated pursuant to Article 28 of the New York State Public

Health Law, does not have any shares of stock which are

publicly traded, and that no publicly held company owns

ten (10) percent or more of Long Island College Hospital’s

stock.

in A cl ca a

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TABLE OF CONTENTS

Page

Corporate Disclosure Statement ................ i

Table of Commit 5... ...us be il

Table of Cited Authorities 2.0.0.1... sceceecss iv |

Reasons for Denying the Writ ................. 1

OQpinions BOOW . . o.6s ica xdenun cee eee 1

Statement of the CUO8 . 63 ki occun waeeeaseeeees 1 |

statement Of the FaGle oo 04 ccauvecddadewes ee 2 |

Respondents’ Argument ............. ibeakeans 6 |

A. There Is No “Split” Among The Circuits On

The Issues Presented In This Case. ....... 6

The Cisse Wanwe TOO... is sinc cis sce aces 10

The Synebietin TOG uikccs cease vaireaeen 11

The Willful Participant Test ............. 11

The Public Function Test .........0ecees 12

B. Contrary to Petitioners’ Contention, There

Was No Due Process Deprivation Here and

There is No Significant “Split” Among the

Circuit Courts on the Due Process Issue in

the Child Welfare Context. .............. 16

ill

Contents

Page

1. Substantive Due Process ............ 17

2. Procedural Due Process ............ 19

23

SES SS ES Se > ge ne

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)

PEE Te ee PEE Pa SY Pee ee TTT eT 12

Bass v. Parkwood Hosp., 180 F.3d 234 (Sth Cir.

Pr Tee ere Pree ern ny Pee mr ore ar re 7, 11

Bendiburg v. Dempsey, 909 F.2d 463 (11th Cir.

1990), cert. denied, 500 U.S. 932 (1991) ...... 12,19

Blum v. Yaretsky, 457 U.S. 991 (1982) ........ Fy Bas Se

Brentwood Academy v. Tennessee Secondary School

Athletic Ass ’n, 531 U.S. 288, 121 S. Ct. 924 (2001)

pekdaaatsewuwticasehaaeeeas 1, 6, 7, 8, 9, 10, 15

Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir.

WER. i cknacear cues adedsnekeecaeucereee 12,19

Burton v. Wilmington Parking Authority, 365 U.S.

FERED 46.0 bob csinbawewehwess diastase 8, 11

Cecere v. City of New York, 967 F.2d 826 (2d Cir.

SOE 5. cas oe ee ne ko 21, 22

Collyer v. Darling, 98 F.3d 211 (6th Cir. 1996)... 10

Community Med. Center v. Emergency Medical

Sves., Inc., 712 F.2d 878 (3d Cir. 1983) ....... 7

ae Nee pie ttt

Vv

Cited Authorities

Page

County of Riverside, 500 U.S. 44 (1991) ......... 21

County of Sacramento v. Lewis, 523 U.S. 833 (1998)

ee pete rie rr ee ree ee ee ee 18

Croft v. Westmoreland Co. Child and Youth Svcs.,

OCB mw Bere zk fe ey. Soares oF 18

Dennis v. Sparks, 449 U.S. 24 (1980) ........... 11

Evans v. Newton, 382 U.S. 296 (1966) .......... 7,11

F.D.1.C. v. Mallen, 486 U.S. 230 (1988) ......... 22

Flagg Bros. v. Brooks, 436 U.S. 149 (1978) ...... 11

Frazier v. Board of Trustees, 765 F.2d 1278

(SC. 19 8 ie eo 7

Gallagher v. Neil Young Freedom Concert, 49 F.3d

SGP CUO Cae, SSDs ss cae EG 10

Gierlinger v. Gleason, 160 F.3d 858 (2d Cir. 1998)

pd viseus ad ekebuu cle ver ebele creas ee 14

Goldstein v. Chestnut Ridge Volunteer Fire Co.,

218 F.36 337 CO CE. BOO) 6 ks bi ees isa ee

Hicks v. Southern Maryland Health Systems Agency,

737 F268 399 COCR, WIRD) bv va etainiew es 11

vi

Cited Authorities

Page

Howerton v. Gabica, 708 F.2d 380 (9th Cir. 1983)

Jackson v. Metropolitan Edison Co., 419 U.S. 345

CEGPS) souk ctvcécvesstetesshsaneeieeue 9, 10, 12

Jensen v. Lane County, 222 F.3d 570 (9th Cir. 2000)

Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994) ... 16, 21

Lassiter v. Department of Soc. Svcs., 452 U.S. 18

(EDGR) occ ncenacccuacsnsdacvaucdeaseeaneet 18

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)

00006e00e8b ensues baee eee ee 7, 10,11

Malley v. Briggs, 475 U.S. 335 (1986) .......... 14

Mentavlos v. Anderson, 249 F.3d 301 (4th Cir. 2001)

WOTTTTTTT TIT rr eer 7

Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir.

SDOD) once cciddedascueeenaee eee 18, 19, 20

Monell v. New York City Dept. of Social Svcs.,

436 U.S. GSS (IGG 6a oc seccckideeeavaseteas 15

Morrissey v. Brewer, 408 U.S. 471 (1972) ....... 20

Parham vy. J.R., 442 U.S. 584 (1979) ............ 16

vil

Cited Authorities

Page

Patrick v. Floyd Med. Center, 201 F.3d 1313

ty te SS rer ror rs Tyrer ror Ter 11

Patterson v. Armstrong Co. Children and Youth

Sves., 2001 U.S. Dist. Lexis 6996 (W.D. Pa. 2001)

pus cea seedendinesciaethenek ue eariasen 18, 21

Payton v. Rush-Presbyterian-St. Luke's Medical

Center, 184 F.3d 623 (7th Cir. 1999) ......... 12, 13

Reitman v. Mulkey, 387 U.S. 369 (1967) ......... 7

Rockwell v. Cape Cod Hosp., 26 F.3d 254 (ist Cir.

SEE “Sc cba en dePauel s vies kaeweencencevans 12

Scott v. Hern, 216 F.3d 897 (10th Cir. 2000) ....12, 14, 15

Sigmon v. CommunityCare HMO, Inc., 234 F.3d

deige, Vt Serr errer oy Ter: cree 12

Skinner v. Railway Labor Executives’ Ass'n,

s.r Na tn et eel 7, 10

Thomas v. Beth Israel Hosp., 710 F. Supp. 935

GE Es SED wa bead dedew hk daee bbe knee 3

Townes v. City of New York, 176 F.3d 138 (2d Cir.

oo BARR Rey ees pCa ey gga se isis eo 14

Van Emrik v. Chemung Co. Dep't of Social Svcs.,

FER Fee OOO CH als BOUED 6 vc inca cwscvsuess 17

vill

Cited Authorities

Page

Warner v. Orange County Dep't of Probation,

BIS F.36 1066 C26 Cor. 1997) 0 ic cccscoecsce 14

Weller v. Dep’t of Social Svcs., 901 F.2d 387

os | ere ere Pre 18

Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999) .. 18

United States Constitution:

es SI 5 6 sw 0'0 060 6.0 4000 bad an 8, 10, 11

Statutes:

Be ee OE i ieckancawondnatwae 1, 12, 13, 14, 15

Seo > Ss Bs RED aca dacadadensdeads on 3

Das se RAED hbk bc Ceca ke tees ecaue 3

em © OR Sg rer re eT re eee 3

BOE « OG, OW, EP OEE nod iccacccscdns asec 3

New York State Public Health Law, Article 28 ... i

1.

|

REASONS FOR DENYING THE WRIT

A 42 U.S.C. § 1983 claim does not lie against a private

hospital or a private social worker when a hospital,

through its medical staff, provides medical treatment, on

a good faith basis, to an infant suspected of methadone

withdrawal.

The United States District Court for the Eastern District

of New York and the Second Circuit Court of Appeals

properly decided that Petitioners’ civil rights had not been

violated and properly dismissed Petitioners’ claims.

. This Court’s recent decision in Brentwood Academy v.

Tennessee Secondary School Athletic Ass'n, 531 U.S. 288

(2001) does not affect the Second Circuit’s decision in

this case as to when a private hospital will be determined

to be a state actor.

OPINIONS BELOW

Both the United States District Court for the Eastern

District of New York, which granted summary judgment to

all defendants, and the United States Court of Appeals for

the Second Circuit, which affirmed that decision, have found

that the Respondents have no liability in this 42 U.S.C.

§ 1983 action.

STATEMENT OF THE CASE

Petitioners’ Statement of the Case and Statement of Facts

contain numerous misstatements and omissions of fact.

Accordingly, Respondents offer the following as a complete

and accurate account of the facts in this case.

2

STATEMENT OF THE FACTS

The synthesized facts of the underlying case are simple.

Petitioner, Kia P., presented to Long Island College Hospital

(“the Hospital”) in labor with a full-term pregnancy. She

had not received any pre-natal care at the Hospital and gave

a history of being a prior crack-cocaine drug abuser and of

having been diagnosed with syphilis, tuberculosis and HIV.

According to the Hospital’s written protocol regarding

“Nursing Management of Infants at Risk for or Having

Symptoms of Neonatal Drug Withdrawal”, Petitioner met

three of the criteria that necessitated a toxicology screen of

the infant’s urine to insure the infant’s well-being. After

delivery, the infant’s urine was collected and sent to the

Hospital’s laboratory for an EMIT assay screening for illicit

substances. The EMIT assay screening of the infant’s urine

was positive for methadone. Kia P. was questioned about

her drug use during this pregnancy. She denied using

methadone during the pregnancy. A Hospital social worker,

Respondent, Susan Morance (““Ms. Morance”), informed

Kia P. that she and the Hospital were required to report

the case to the New York State Central Registry for Child

Abuse.' Ms. Morance reported the case to the Central

1. Ms. Morance’s authority as a social worker derives from New

York Social Services Law. Title VI, entitled “Child Protective Services,”

was enacted in 1973 to provide more effective protection to abused

and maltreated children in New York State. One of its purposes was to

encourage more complete reporting of suspected child

abuse and maltreatment and to establish in each county

of the state a child protective service capable of

investigating such reports swiftly and competently and

capable of providing protection for the child or children

(Cont'd)

3

Registry promptly and the physicians at the Hospital treated

and observed the infant for signs and symptoms of methadone

(Cont’d)

from further abuse or maltreatment and rehabilitative

services for the child or children and parents involved.

N.Y. Soc. Serv. Law § 411.

The statute encourages, even requires, a wide variety of persons

to report suspected child abuse. Section 413 permits some of the written

reports from persons or officials to be admitted in evidence and

authorizes various officials, including “a designated employee of a city

or county department of social services,” to take a child into protective

custody without consent of the parent whenever continuing the child

in the parents’ custody presents an “imminent danger” to the child’s

health. N.Y. Soc. Serv. Law § 417(1).

The New York Child Protective Services Act provides a

comprehensive statutory system and procedural framework for the

reporting of suspected cases of child abuse. Section 413 of the Child

Protective Services Act requires certain individuals, including

physicians, nurses and any hospital personnel engaged in the admission,

examination, care or treatment of persons, to report or cause a report to

be made when they have “reasonable cause to suspect that a child

coming before them in their professional or official capacity is an abused

or maltreated child.” Section 413 further provides:

Whenever such person is required under this Title in his

capacity as a member of the staff of a medical . . . institution

... he shall immediately notify the person in charge of

such institution, . . . who then also shali become responsible

to report or cause reports to be made.

Thomas v. Beth Israel Hosp., 710 F. Supp. 935, 940 (S.D.N.Y. 1989).

Section 420 of the Child Protective Services Act makes the failure

to report a case of suspected child abuse a criminal offense, a Class A

misdemeanor, punishable in New York State by up to one year in prison,

and subjects individuals who willfully fail to make such reports to civil

liability for the damages proximately caused by such failure.

4

withdrawal. Methadone withdrawa! is a serious medical

condition and is potentially fatal to infants. The infant

displayed signs of irritability and tremors, both of which are

symptoms of methadone withdrawal. Pet. App. at B4

and D3. The infant was treated with supportive care. Based

upon Kia P.’s denial of methadone use during this pregnancy,

the infant’s urine was forwarded to an outside laboratory for

confirmatory testing. The first laboratory could not test the

infant’s urine because the sample was too small. Therefore,

the urine sample was forwarded by the first laboratory to

another laboratory for microscopic testing.

The first laboratory’s inability to conduct the required

testing caused a delay that was not due to any fault of the

Hospital. The microscopic testing could not detect a presence

of methadone. Once the confirmatory test results were

received by the Hospital, on April-7, 1993, Hospital

laboratory personnel reported those results to the infant’s

physicians. Based upon the results and the lack of further

withdrawal symptoms, the physicians transferred the infant

from a medical observation status to “ALC” (Alternate Level

of Care), which indicated that there was no longer any

medical need for the infant to remain in the Hospital. On

April 7, 1993, Ms. Morance also reported the test results to

CWA. Within one day, the Child Welfare Administration,

Ms. McIntyre and Ms. Delamothe (the “City Respondents’’)

made a determination that they were not going to take any

action against Kia P. and communicated this information to

the Hospital through Ms. Morance on April 8, 1993. The

infant was released from the Hospital that same day at 11:20

a.m. Based upon these occurrences, Petitioners brought this

action against the Hospital, Ms. Morance and the City

Respondents.

5

Petitioners claim that Mora was on a “social hold” from

the time of her birth. There has been no evidence to support

this claim. At the conclusion of discovery all witnesses had

testified that Mora was on a “medical” hold, being medically

treated, due to her methadone withdrawal. Petitioners

brazenly claim that the EMIT assay was false. This is also

not true. The presence of methadone could not be confirmed

in the infant’s urine seven days after it was initially collected,

but the microscopic testing via gas chromotography/mass

spectometry (gc/ms) did not test for the presence of

methadone metabolites. All the gc/ms testing showed was

that, seven days post collection, the presence of methadone

could not be confirmed. Petitioners also claim that the EMIT

screening test used by the Hospital is “frequently inaccurate.”

There has been no evidence, other than Petitioner’s own

expert witness’s statement, that the EMIT assay used for the

routine screening of the infant’s urine for illicit drugs is at

all inaccurate. Moreover, Petitioners state that the drug

Phenergan cross-reacts as methadone for the EMIT assay.

However, they fail to mention that the Phenergan would have

to be given in extremely high doses and that such high doses

were not administered to Kia P. Petitioners also allege that

Kia was limited in her visits with Mora for the purpose of

feeding her. The District Court found that “it is uncontested

that while Mora remained in the Hospital, Kia was permitted

to, and did, visit Mora, including during feeding times.” Pet.

App. at D4. Petitioners attempt to enlist this Court’s

Sympathy by claiming they were caused to suffer an

“indignity” when submitting to drug testing by CWA.

However, the District Court and the Second Circuit Court

found that Kia and her husband “voluntarily submitted to

drug tests”. Pet. App. at BS.

6

Petitioners’ statement of the facts egregiously fails to

acknowledge that the infant showed signs and symptoms of

methadone withdrawal, tremors and irritability. The Second

Circuit noted the District Court’s finding that “there is

undisputed evidence in the record that an infant’s methadone

withdrawal can take a minimum of one week to manifest

itself. Hospital records indicate that Mora exhibited tremors

and irritability, which are symptoms consistent with

methadone withdrawal.” Pet. App. at B4. Petitioners omit

the fact that the infant was being medically observed during

her entire admission for potentially fatal seizures due to

methadone withdrawal. Pet. App. at B4.

Petitioners have offered no evidence in admissible form

supporting their allegations that the Respondents violated

any of Petitioners’ constitutionally protected rights. As

Petitioners’ false accusations are wholly unsupported by the

record, their petition for a writ of certiorari should be denied.

RESPONDENTS’ ARGUMENT

A. There Is No “Split” Among The Circuits On The

Issues Presented In This Case.

Petitioners have misconstrued this Court’s holding in

Brentwood Academy v. Tennessee Secondary School Athletic

Association, 531 U.S. 288 (2001). In an effort to obtain

certiorari review, Petitioners contend that:

1. The Second Circuit’s decision has created a

split in the Circuits on the question of whether

there is state action when a private hospital

detains a minor for child protective reasons.

Pet. Brief at 15.

7

Petitioners ignore the multitude of decisions from this

Court and all Circuit Courts which hold that there is no bright

line for determining who is and who is not a state actor

because each case is fact specific. Evans v. Newton, 382 U.S.

296 (1966); Blum v. Yaretsky, 457 U.S. 991 (1982); Lugar

v. Edmondson Oil Co., 457 U.S. 922 (1982); Skinner v.

Railway Labor Executives’ Ass'n, 489 U.S. 602 (1989);

Community Med. Center v. Emergency Medical Svcs., Inc.,

712 F.2d 878 (3d Cir. 1983); Mentavlos v. Anderson, 249

F.3d 301 (4th Cir. 2001); Goldstein v. Chestnut Ridge

Volunteer Fire Co., 218 F.3d 337 (4th Cir. 2000); Frazier v.

Board of Trustees, 765 F.2d 1278 (Sth Cir. 1985); Bass v.

Parkwood Hosp., 180 F.3d 234 (Sth Cir. 1999); Howerton

v. Gabica, 708 F.2d 380 (9th Cir. 1983). “This Court has

never attempted the ‘impossible task’ of formulating an

infallible test for determining whether the State (‘in any of

its manifestations’) has become significantly involved in

private discriminations.” Reitman v. Mulkey, 387 U.S. 369,

378 (1967). The Brentwood court stated:

What is fairly attributable is a matter of normative

judgment, and the criteria lack rigid simplicity.

From the range of circumstances that could point

toward the State behind an individual face, no one

fact can function as a necessary condition across

the board for finding state action; nor is any

set of circumstances absolutely sufficient, for

there may be some countervailing reason

against attributing activity to the government.

See Tarkanian, 488 U.S. at 193, 196; Polk County

v. Dodson, 454 U.S. 312, 70 L. Ed. 2d 509, 102

S. Ct. 445 (1981).

Brentwood, supra at _,121S. Ct. at 930.

8

Because a single standard test is not practical or possible,

this Court has adopted a number of approaches depending

on the circumstances, and has counseled lower courts to

carefully investigate the facts of each case. Burton v.

Wilmington Parking Authority, 365 U.S. 715 (1961). —

This Court’s decision in Brentwood is consistent with

its previous holdings in cases regarding state actors. There

has been no major revision or addition to the tests based

upon the holdings of Brentwood. Moreover, the Second

Circuit’s decision in the instant case is entirely consistent

with those holdings. The Brentwood case is quite simple and

straightforward. There, the Tennessee Secondary School

Athletic Association (TSSAA) was incorporated to regulate

interscholastic athletic competition among public and private

secondary schools in Tennessee. Jd. at _ , 121 S. Ct. at 927.

The TSSAA had historically been seen to regulate in lieu of

the State Board of Education’s exercise of its own authority.

In fact, the State Board of Education for Tennessee, in 1972,

expressly “designated” the TSSAA as the organization to

supervise and regulate the athletic activities in which the

public junior and senior high schools in Tennessee participate

on an interscholastic basis. Jd. at__, 121 S. Ct. at 928. Prior

to this delegation of duty, supervision and regulation of junior

and senior high school athletic activities had been a state

function, as part and parcel of providing an education to the

children of Tennessee. Once the State Board of Education

in Tennessee cloaked the TSSAA with the authority to

organize and supervise the athletic component of Tennessee’s

responsibility to educate its children, TSSAA became a state

actor subject to Fourteenth Amendment scrutiny.

In this case, the State did not delegate any responsibilities

to the Hospital for the care and treatment of this infant.

9

The Hospital was a private actor, privately treating this infant

and her mother who put themselves in the care of the Hospital’s

physicians and nurses when Kia P. presented to the Hospital

for the delivery of Mora. The State, through CWA or any other

source was never involved, even peripherally, in any of the

medical treatment decisions made by the Hospital’s physicians.

This Court in Brentwood, supra, and a plethora of related

cases, has held that

“[t]he judicial obligation is not only to preserve an

area of individual freedom by limiting the reach of

federal law and avoid the imposition of

responsibility on a State for conduct it could not

control,” Tarkanian, supra, at 191 (quoting Lugar,

supra, at 936-937), but also to assure that

constitutional standards are invoked “when it can

be said that the State is responsible for the specific

conduct of which the plaintiff complains.” Blum,

supra, at 1004.

The test this Court adopted is the test commonly used in one

form or another throughout all the Circuit Courts and was the

test used by the Second Circuit in the decision that is before

this Court for review. This test is the close nexus test.

Specifically, this Court has stated that “‘state action may be found

if, though only if, there is such a ‘close nexus between the State

and the challenged action’ ” that seemingly private behavior

“may be fairly treated as that of the State itself.” Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (emphasis

added).

There is abundant authority for the Second Circuit’s

decision that the Hospital was not a state actor while providing

medical care to Mora. See Jensen v. Lane County, 222 F.3d

570 (9th Cir. 2000). In making a determination of whether a

10

private party is a state actor for Fourteenth Amendment

purposes, analyzing Brentwood together with all the preceding

cases, this Court has taken a flexible approach to the state action

doctrine, applying a variety of tests to the facts of each case.

Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447

(10th Cir. 1995). Those tests used to determine state action

include the close nexus, symbiotic relationship, joint action and

public function tests. Each of the eleven United States Circuit —

Courts of Appeal has also applied these tests completely

consistent with the recent Brentwood decision. Based upon any

of these tests Petitioners can not show that the Hospital was a

state actor when it medically treated Mora for methadone

withdrawal. Further, Petitioners can not show that Ms. Morance

was a State actor when she carried out her duties as a hospital

employed social worker.

The Close Nexus Test

First, under the close nexus test, “a plaintiff must

demonstrate that there is a sufficiently close nexus between the

government and the challenged conduct such that the conduct

may be fairly treated as that of the State itself.” Jackson, 419

US. at 351. See also Lugar, 457 U.S. at 936; Collyer v. Darling,

98 F.3d 211 (6th Cir. 1996); Jensen, supra.

A “state official’s mere approval of or acquiescence to

the conduct of a private party is insufficient to establish the

nexus required for state action.” See Gallagher, supra, at 1450.

The close nexus -— state action determination requires an

examination of all the relevant circumstances, in an attempt to

evaluate the degree of the Government’s participation in the

private party’s activities. Skinner, supra. Whether a private party

should be deemed an agent or instrument of the Government

for Fourteenth Amendment purposes necessarily turns on the

11

degree of the Government’s participation in the private

party’s activities, a question that can only be resolved in

light of all the circumstances. Evans v. Newton, 382 U.S.

296 (1966). Only by sifting facts and weighing circumstances

can the court determine whether the reach of the Fourteenth

Amendment extends to a particular case. Burton v.

Wilmington Parking Authority, 365 U.S. 715 (1961). There

is no specific formula for determining state action. Hicks v.

Southern Maryland Health Systems Agency, 737 F.2d 399,

402 n.3 (4th Cir. 1984) (quoting Howerton v. Gabica, 708

F.2d 380, 383 (9th Cir. 1983)); see also Lugar v. Edmondson

Oil Co., 457 U.S. 922 (1982); Bass v. Parkwood Hosp., 180

F.3d 234 (Sth Cir. 1999); Patrick v. Floyd Med. Center, 201

F.3d 1313 (11th Cir. 2000).

The Symbiotic Test

The second test is the symbiotic relationship test.

A symbiotic relationship constitutes state action if the State

“has so far insinuated itself into a position of interdependence

[with a private party that] it must be recognized as a joint

participant in the challenged activity.” Burton, 365 U.S.

at 725 (1961).

The Willful Participant Test

Third, state action can be present if a private party is a

“willful participant in joint action with the State or its

agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980). As with

the other tests, “the mere acquiescence of a State official in

the actions of a private party is not sufficient.” F lagg Bros.

v. Brooks, 436 U.S. 149, 164 (1978). “Constitutional

standards are invoked only when it can be said that the State

is responsible for the specific conduct of which the plaintiff

complains.” Blum, supra, at 1004 (1982).

12

This Court in Blum also applied the close nexus test.

And after finding that the actions of a private nursing home

could not be fairly attributed to the State, this Court looked

at a second part of the nexus test. This Court specifically

noted that the

“factual setting of each case will be significant”,

[but the] precedents indicate that a State normally

can be held responsible for a private decision only

when it has exercised coercive power or has

provided such significant encouragement, either

overt or covert, that the choice must in law be

deemed to be that of the State.

Id. at 1004. To prove a conspiracy between private parties

and the state under section 1983, the plaintiff must show a

joint participation, agreement, or meeting of the minds to

violate constitutional rights. Adickes v. S.H. Kress & Co.,

398 U.S. 144(1970). And, there must be sufficient evidence

of a conspiracy to prevent the jury from engaging in sheer

speculation and conjecture. See Brokaw v. Mercer County,

235 F.3d 1000 (7th Cir. 2000); Sigmon v. CommunityCare

HMO, Inc., 234 F.3d 1121 (10th Cir. 2000); Scott v. Hern,

216 F.3d 897 (10th Cir. 2000); Bendiburg v. Dempsey, 909

F.2d 463 (11th Cir. 1990), cert. denied, 500 U.S. 932 (1991).

The Public Function Test

Finally, the public function test is narrow and difficult

to satisfy. A private party is a state actor if the state delegates

to it a “function traditionally exclusively reserved to the

State.” Jackson, supra, at 352. See also Rockwell v. Cape

Cod Hosp., 26 F.3d 254 (ist Cir. 1994); Goldstein, supra;

Payton v. Rush-Presbyterian-St. Luke's Medical Center,

13

184 F.3d 623 (7th Cir. 1999). This Court has found only a

few areas, including the administration of elections of public

officials, to be public functions.

Applying any one of these four tests, especially the

entwinement or joint action test, which Petitioners assert is

their strongest argument, Petitioners fail to demonstrate

sufficient evidence of state action against the Hospital or

Ms. Morance.

Therefore, Petitioners are left with the argument that the

Hospital, separate and apart from medical judgments can be

determined to be a state actor thereby subjecting the Hospital

to liability under section 1983. This argument fails as well

based upon the lack of proximate cause. Petitioner has

asserted this second theory that “concurrent with the medical

care rendered to Mora, the Hospital’s Administration was

acting in another capacity to detain Mora.” This fictitious

allegation is without record support and without proof of a

direct and proximate cause, Petitioners’ allegations must fall.

Petitioners claim that the infant was held by the Hospital for

two concurrent reasons. The first, for which liability under

§ 1983 cannot attach, was that in the judgment of the Hospital

doctors, medical observation and treatment of this infant was

mandated. Second, the Hospital had a written policy requiring

admission of suspected victims of child abuse until the

New York State Family Court determined whether to remove

that child into State custody. There is no evidence in this

case, other than the mere existence of the written policy,

that Mora was held pursuant to that policy or for any reason

other than the physicians’ concern that she was suffering

from methadone withdrawal. Mere allegations are not enough

to establish a causal connection between the reason for the

14

hold and the hold itself. “A section 1983 action, like its state

tort analogs, employs the principle of proximate causation.”

Townes v. City of New York, 176 F.3d 138, 146 (2d Cir.

1999). “As in all section 1983 cases, the plaintiff must prove

that the defendant’s action was a proximate cause of the

plaintiff's injury.” Gierlinger v. Gleason, 160 F.3d 858, 872

(2d Cir. 1998). Although proximate causation in the section

1983 context is a question of federal law, in determining the

meaning of the concept, courts look to those state tort

analogs, because this Court has made it crystal clear that

principles of causation borrowed from tort law are relevant

to civil rights actions brought under section 1983. Warner

v. Orange County Dep't of Probation, 115 F.3d 1068

(2d Cir. 1997).

This Court, in Malley v. Briggs, 475 U.S. 335 (1986)

endorsed the rule that courts “should read [section 1983]

against the background of tort liability that makes a man

responsible for the natural consequences of his actions”.

Id. at 344-45 n.7. However, part of this tort background is

the concept of the “but for” test. A plaintiff must allege

factual causation — i.e., “but for” causation — in order to

state a claim under section 1983. Scott, supra. In Scott,

plaintiff brought an action under section 1983 against

individuals who participated in his involuntary commitment

to a mental institution. One of the defendants, Police Officer

Idler, had written and submitted a report regarding Scott’s

mental condition. Plaintiff alleged that it was this report

together with the co-defendant’s, Dr. Hern, examination that

was the “direct and proximate” cause of the deprivation of

his constitutional rights. However, the Tenth Circuit found

otherwise and stated that these facts were bald allegations.

The Tenth Circuit found that

——

15

even assuming that Idler included false statements

in his report and then gave that report to Hern

knowing it would be used to seek Scott’s

involuntary commitment, it is simply not the

case that, “but for” Idler’s preparation and

provision of the report, Scott would not have been

committed ... And even if Idler’s report was

sufficient in itself to support Scott’s commitment,

it was not a substantial factor because it was

insignificant in relation to the other facts set forth

in [Hern’s] affidavit.

Id. at 911. Similarly, in Monell v. New York City Dept. of

Social Svcs., 436 U.S. 658 (1978) this Court held that official

policy must be the “moving force of the constitutional

violation” in order to-establish the liability of a government

body under section 1983. Jd. at 694.

These cases are similar to the situation of the two alleged

factors upon which Petitioners base Mora’s detention in the

Hospital. All of the evidence has proven that the only factor

upon which Mora was held in the Hospital for the first

8-9 days was the medical judgment of the physicians that Mora

was suffering from methadone withdrawal. There has been no

testimony to the contrary and both courts below concurred that

Mora was held on a medical basis while she was being treated

and observed for methadone withdrawal. Therefore, Petitioners’

bald allegations that Mora was held pursuant to a written policy

can not withstand the “but for” test. As Mora was not held by

the Hospital pursuant to the Administrative Policy, nor was she

held by any act fairly attributable to, or entwined with, the State

and the Hospital through its administrators or physicians are

not entwined with the State so as to satisfy the test recently

enunciated in Brentwood, the Second Circuit’s decision was

entirely consistent with Brentwood.

16

B. Contrary to Petitioners’ Contention, There Was

No Due Process Deprivation Here and There is

No Significant “Split” Among the Circuit Courts on

the Due Process Issue in the Child Welfare Context.

Both courts below, in viewing the facts and resolving

all ambiguities in favor of Petitioners, correctly held that

Petitioners were not deprived of due process.

Respondents fully agree with Petitioners that the parent-

child relationship is a fundamental liberty interest and one

that is deserving of the greatest sanctity. Of that there is no

dispute. However, Petitioners fail to note that this principle is

not without qualification. As the Federal courts have observed,

“{t]hese substantial private interests are not without public

counterpart in the context of protective custody by the State.”

Jordan v. Jackson, 15 F.3d 333, 346 (4th Cir. 1994). Indeed,

this Court has stated that “a state is not without constitutional

control over parental discretion in dealing with children when

their physical or mental health is jeopardized.” Parham v.

J.R., 442 U.S. 584, 603 (1979).

Contrary to the record below and the Second Circuit’s

findings, Petitioners stubbomly contend that the “deprivation”

here lasted significantly longer than one day. Petitioners,

fully aware that the Federal courts have routinely found no

due process violation in similar situations, are forced to

maneuver around the indisputable facts herein in an attempt

to enlarge the arguable period of deprivation from one day

to a week or more. Petitioners have failed in this regard.

The Second Circuit, in reviewing the District Court’s

granting of summary judgment de novo, construed the evidence

in the light most favorable to Petitioners and found there to be:

17

[I]nsufficient evidence in the record to support a

finding that the Hospital’s decision to hold Mora

until she was medically cleared was made for

CWA-related purposes . . . Mora would have been

released to her mother at her mother’s insistence

despite Hospital’s doctors’ concerns that Mora

might be suffering from life-threatening

methadone withdrawal. Such evidence does not

establish state action by the hospital in retaining

Mora pending her medical release.

Pet. App. at B12.

Thus, in reviewing the record most favorable to

Petitioner, the Second Circuit concluded that:

[T]he Hospital did not hold Mora in its capacity

as a State actor until after the primary evidence

of abuse had been discredited, when the drug test

indicated the absence of methadone in Mora’s

urine and she was medically cleared for release.

Pet. App. at B17 (emphasis supplied). Accordingly, for the

Second Circuit, the due process clock began ticking once

the child was medically cleared as that was when the infant’s

hospitalization transformed legally from “non-state action”

to “state action.”

1. Substantive Due Process

Analysis of the due process liberty interest involves

evaluation of both substantive and procedural safeguards.

Van Emrik v. Chemung Co. Dep’t of Social Svcs., 911 F.2d

866 (2d Cir. 1990).

18

Inherent in the analysis of substantive due process is a

balancing of the two competing interests discussed above,

i.e., the sanctity of the parent-child relationship with the

state’s compelling interest to protect the child’s health and

safety, even if that involves protecting the child from his or

her own parents. See Wilkinson v. Russell, 182 F.3d 89

(2d Cir. 1999); Croft v. Westmoreland Co. Child and Youth

Sves., 103 F.3d 1123 (3d Cir. 1997).

This Court has stated that, “ ‘due process’ has never

been, and perhaps never can be, precisely defined.” Lassiter

v. Department of Soc. Svcs., 452 U.S. 18 (1981). In a similar

context, this Court has ruled that “only the most egregious

official conduct can be said to be arbitrary in the

constitutional sense.” County of Sacramento v. Lewis, 523

U.S. 833, 846 (1998). Indeed, to establish liability, it must

be shown that the executive action “shocks the conscience.”

Id. Mere negligence will not suffice. Jd. at 848-49. As one

court has observed, for liability to attach to a social worker

in the custody context, the standard of culpability “must

exceed both negligence and deliberate indifference, and reach

a level of gross negligence or arbitrariness that indeed

‘shocks the conscience’.” Miller v. City of Philadelphia,

174 F.3d 368 (3d Cir. 1999) (holding no violation of

substantive due process when social worker “reasonably

believed” the children were in danger of abuse). See also

Weller v. Dep't of Social Svcs., 901 F.2d 387 (4th Cir. 1990);

Patterson v. Armstrong Co. Children and Youth Svcs., 2001

U.S. Dist. exis 6996 (W.D. Pa. 2001).

Given the constant friction between the competing

interests in the child abuse investigation arena, the Second

Circuit herein held that such an investigation will be deemed

constitutional “provided simply that case workers have a

19

reasonable basis for their findings of abuse.” Pet. App.

at B17. See also Brokaw v. Mercer County, 235 F.3d 1000

(7th Cir. 2000); Miller, supra.

Employing that standard here and analyzing the

applicable time period for alleged due process deprivation

(“a day or two in this case” Pet. App. at B17.), the Second

Circuit held that this was a reasonable period of time for the

CWA to process the information, review the case, decide

whether to authorize release, and communicate their decision

to the Hospital. Pet. App. at B17-18. Accordingly, the Second

Circuit held that with respect to the Hospital:

The Hospital’s holding of Mora pending the

outcome of this deliberative process is a

reasonable accommodation of the state’s

compelling interest in protecting children from

abuse and neglect.

Pet. App. at B18.

Even in Bendiburg, supra, a case relied upon by

Petitioner to demonstrate a claimed schism in the circuits,

the Eleventh Circuit found no substantive due process

violation and stated that, “circumvention of parental authority

for a five-day period did not rise to a level sufficiently

egregious or shocking to sustain a substantive due process

claim with respect to severance of the parent-child

relationship.” 909 F.2d at 468 (emphasis supplied).

2. Procedural Due Process

Under Petitioners’ procedural due process claim they _

allege they were entitled to either or both of a pre-deprivation

hearing and/or a post-deprivation hearing.

20

No pre-deprivation hearing was required here given that

the infant was admitted to the hospital upon her birth and

was monitored and treated over the ensuing days due to

suspected methadone withdrawal. Even in a routine situation

where no such abuse is suspected, a newborn child is

admitted to the hospital for several days following birth for

routine medical monitoring of both mother and child. In the

face of suspected medical complications, that period may

become extended in order to permit the medical staff to make

the appropriate diagnosis and render the appropriate

treatment. Petitioners certainly do not suggest that any patient

admitted to a hospital, either infant or adult, is entitled to a

pre-deprivation hearing while the medical staff is in the

process of evaluating and treating a patient. Moreover, as

the District Court noted, it is “uncontested that while Mora

remained in the Hospital, Kia P. was permitted to, and did,

visit Mora, including feeding times.” Pet. App. at D4. That

Kia P. was permitted unfettered daily access to her daughter

throughout the hospitalization was a factual finding in the

courts below.

As this Court has recognized that “due process is flexible

and calls for such procedural protections as the particular

situations demands,” Morrissey v. Brewer, 408 U.S. 471,

481 (1972), it is abundantly clear in the case at bar that it

was neither necessary nor feasible for a prior hearing to be

held. The infant was born in the hospital, was thought to

have a serious medical condition, demonstrated known

symptoms of that condition, was treated for that condition,

and said condition was not medically resolved for several

days. Hence, there was no indication or opportunity for a

prior hearing. Once the medical evaluation was concluded,

the infant remained in the hospital for a very brief period

while the CWA determined no investigation would be

21

commenced and communicated their decision to the hospital.

By the next morning, the infant was discharged home. As

such, a pre-deprivation hearing was not possible.

As for the post-deprivation hearing, that argument

becomes moot given that Kia P. discharged the infant from

the hospital roughly one day following the cessation of the

medical work-up for methadone withdrawal. The methadone

evaluation was deemed complete as of April 6 or 7 and

Kia P. signed her daughter out of the Hospital on April 8 at

11:20 a.m.’ In fact, other courts that have addressed this issue

in a similar context have upheld periods of deprivation that

exceed the time period herein. See, e.g., County of Riverside,

500 U.S. 44 (1991); Miller, supra; Jordan, supra; Patterson,

supra.

As the Second Circuit correctly held, the time period

encompassing any conceivable “deprivation” here was minimal

and was reasonable under the circumstances. Pet. App. at

B21-22. While Petitioners paint a picture of a “split” throughout

the Circuits on this issue, a reading of similar cases finds that

contention to be off the mark. To the contrary, the Federal courts

have held that deprivations that last brief periods of time,

typically several days, until a hearing is held, are not violative

of due process. See, e.g., Jordan, supra (holding that no hearing

until 65 hours after the removal was constitutional); Patterson,

supra (stating that seventy-two hours is the “outside tolerance

of the Fourteenth Amendment”); Cecere v. City of New York,

2. Indeed, it would seem overly generous to characterize this

one day time period as a “deprivation” since once the lab results

were received by the hospital and analyzed by the physicians on

April 7, it was then determined that further medical observation

was no longer necessary, and the wheels were set in motion to

discharge the infant, which was accomplished the following morning.

22

967 F.2d 826 (2d Cir. 1992) (holding that a “deprivation” of

four days was not violative of due process) Here, no post-

deprivation hearing was ultimately necessary given that the

Hospital discharged the infant within one to two days following

the starting point of any arguable “deprivation” and that period

of time was within the “prompt” time period that the Circuit

Courts will tolerate in such situations. As this Court has

observed, “the significance of such a delay cannot be evaluated

in a vacuum.” F.D.I.C. v. Mallen, 486 U.S. 230, 242 (1988).

Implicitly adopting the inherent rule of flexibility that

must be considered in due process cases, the Second Circuit

noted that the instant case is not the typical scenario in that

the infant was already huspitalized when the alleged

deprivation began. She was not forcibly removed from her

mother, but rather was voluntarily placed in the hospital by

virtue of her birth there. The Second Circuit then addressed

whether a “prompt” post-deprivation hearing was held.

Pet. App. at B20. In defining “prompt”, the court noted that

it had previously tolerated a four-day delay (see Cecere,

supra), and held that the one to two days in the instant case

was within the acceptable “breathing room” that the law

provides child welfare officials to make decisions. Pet. App.

at B22-22.

As illustrated by the aforementioned cases, the one to

two days at issue herein is well within the outside parameters

that have been established by the other circuits. Given the

factual idiosyncrasies of child abuse cases, coupled with the

inability to precisely define “due process”, it is evident that

the lower courts must be permitted flexibility to address each

case individually. While Petitioners point to a “split” among

the lower courts, Petitioners can point this Court to no

credible evidence of the same.

23

CONCLUSION

For all of the foregoing reasons, Respondents Long

Island College Hospital and Susan Morance respectfully

request that this Honorable Court deny the Petition for a Writ

of Certiorari.

Respectfully submitted,

JENNIFER E. BiENSTOCK

Counsel of Record

LAWRENCE D. BLOOMSTEIN

AARONSON, RAPPAPORT, FEINSTEIN

& Deutscu, LLP

Attorneys for Respondents

Long Island College Hospital

and Susan Morance

757 Third Avenue

New York, New York 10017

(212) 593-6700