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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 820

## Text

No. 00-1800 / JUL S$ 200

t me

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

il

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1887%3A2. Public record. Not legal advice.