193 F.3d 581 (2nd Cir. 1999), 97-9488, Tenenbaum v Williams

Docket Nº:Docket Nos. 97-9488(L), 97-9554(XAP)
Citation:193 F.3d 581
Party Name:MARC TENENBAUM and MARY TENENBAUM, individually and on behalf of SARAH TENENBAUM, an infant, Plaintiffs-Appellees-Cross-Appellants, v. NAT WILLIAMS, individually and as a caseworker, Child Welfare Administration, VERONICA JAMES, individually and as a caseworker, Child Welfare Administration, DOBY FLOWERS, individually and as Commissioner of Social
Case Date:October 13, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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193 F.3d 581 (2nd Cir. 1999)

MARC TENENBAUM and MARY TENENBAUM, individually and on behalf of SARAH TENENBAUM, an infant, Plaintiffs-Appellees-Cross-Appellants,

v.

NAT WILLIAMS, individually and as a caseworker, Child Welfare Administration, VERONICA JAMES, individually and as a caseworker, Child Welfare Administration, DOBY FLOWERS, individually and as Commissioner of Social Services of the City of New York, and BROOKE TRENT, individually and as Deputy Commissioner of Social Services of the City of New York, Defendants-Cross-Appellees,

NEW YORK CITY, Defendant-Appellant-Cross-Appellee,

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MARVA LIVINGSTON, as Commissioner of Social Services of the City of New York, CLAUDE MEYERS, as Deputy Commissioner of Social Services of the City of New York, Appellants-Cross-Appellees,

and

NEW YORK CITY BOARD OF EDUCATION, Defendant.

Docket Nos. 97-9488(L), 97-9554(XAP)

United States Court of Appeals, Second Circuit

October 13, 1999

Argued: September 9, 1998

Appeal and cross-appeal from a judgment of the United States District Court for the Eastern District of New York (DenisR. Hurley, Judge) in plaintiffs' action against the defendants under 42 U.S.C. §1983 (i) awarding plaintiffs damages on their claims against some of the defendants on the grounds that (a) the plaintiffs' and their daughter Sarah's procedural due-process rights were violated by the performance of a medical examination on Sarah in connection with child-abuse allegations against her father without the plaintiffs' permission or court authorization, and (b) Sarah's Fourth Amendment right to be free from unreasonable searches was violated by the same examination; and (ii) granting defendants' motion for summary judgment as to, inter alia, (a)plaintiffs' claims that their and Sarah's procedural due-process rights were violated by the removal of Sarah from school for the purpose of conducting the medical examination, (b) plaintiffs' claim that Sarah's Fourth Amendment right to be free from unreasonable seizures was violated by her removal from school, (c)plaintiffs' claims that their and Sarah's substantive due-process rights were violated by Sarah's removal from school, (d) plaintiffs' claims under state law, and (e) plaintiffs' claims against the individual defendants because all such claims were barred on the grounds of qualified immunity. Plaintiffs also challenge the district court's award of damages as insufficient to compensate them and Sarah for the constitutional violations they suffered.

Affirmed in part, vacated in part, and remanded.

Judge Jacobs concurs in part and dissents in part in a separate opinion.

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CAROLYN A. KUBITSCHEK, Lansner & Kubitschek, New York, NY (David J. Lansner, Christopher S. Weddle, Charles Park, legal assistant, on the brief), for Appellees-Cross-Appellants.

ELLEN RAVITCH, Assistant Corporation Counsel of the City of New York, New York, NY (Jeffrey D. Friedlander, Acting Corporation Counsel of the City of New York, Stephen J. McGrath, Bruce Rosenbaum, of counsel), for Appellants-Cross-Appellees and Defendant-Appellant-Cross-Appellee.

Diane Redleaf, Lehrer & Redleaf, Chicago, Ill., for Amicus Curiae National Coalition for Child Protection Reform.

Before: McLAUGHLIN, JACOBS and SACK, Circuit Judges.

SACK, Circuit Judge:

On Tuesday, January 9, 1990, at about noon, a caseworker from the New York City Child Welfare Administration (the "CWA") removed five-year-old Sarah Tenenbaum from her kindergarten class at P.S. 230 in Brooklyn, New York, pursuant to the emergency removal provisions of New York Social Services Law §417 1 and New York Family Court Act §1024, 2 without court order and without notifying or receiving authorization from either of her parents, Marc and Mary Tenenbaum (the "Tenenbaums"). Sarah was taken to the emergency room at Coney Island Hospital where a pediatrician and a gynecologist examined her for signs of possible sexual abuse. When they found none, she was returned to her parents. The case was abandoned as "unfounded."

The Tenenbaums brought suit in the United States District Court for the Eastern District of New York against, inter alia, New York City (the "City"), the CWA, and CWA employees. The City appeals from a money judgment against it in the district court (Denis R. Hurley, Judge) based on the district court's finding that the medical examination performed without either parental consent or court order deprived the Tenenbaums and their daughter of procedural rights guaranteed by the Due Process Clause of the Fourteenth Amendment, and infringed Sarah's right to be free from unreasonable searches under the Fourth Amendment applied to the States through the Fourteenth. The Tenenbaums, for themselves and their daughter, cross-appeal from the judgment of the district court insofar as it granted defendants' motion for summary judgment dismissing their claim that the defendants' removal of Sarah from school without their consent or court authorization was a violation of their and Sarah's procedural and substantive rights under the Due Process Clause of the Fourteenth Amendment. They also appeal the court's holding that Sarah's removal from school was, as a matter of law, not a violation of her right under the Fourth Amendment, as applied to the States through the Fourteenth, to be free from unreasonable seizures. Further, the Tenenbaums challenge the district court's finding on summary judgment that the

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individual defendants are entitled to qualified immunity on all the claims against them. The Tenenbaums also contend that their state-law claims should not have been dismissed. Finally, the Tenenbaums challenge the district court's damage award, arguing that it is insufficient to compensate them for the constitutional violations they suffered.

We affirm the judgment insofar as it holds that the medical examination violated the Tenenbaums' and Sarah's procedural due-process rights and Sarah's Fourth Amendment rights and awards damages therefor. We disagree with the Tenenbaums that there is a triable issue of fact as to whether Sarah's removal violated substantive rights accorded by the Due Process Clause, and we affirm that part of the district court's judgment. We conclude, however, that there is a triable issue of fact as to whether the defendants' removal of Sarah from school was contrary to the procedural requirements of the Due Process Clause and to Sarah's right to be free from unreasonable seizures under the Fourth Amendment. Because we also agree with the district court that the individual defendants are entitled to qualified immunity, however, we vacate in part and remand only with respect to the City. We affirm the district court's award of damages, recognizing that the court may make an additional award should the Tenenbaums prevail on the claims that we remand for trial.

Background

The facts underlying this appeal are largely undisputed. Five-year-old Sarah Tenenbaum, a kindergartner at P.S. 230 in Brooklyn, was "developmentally delayed" and afflicted with "elective mutism" -- only rarely would she speak to others outside of her home. In school, non-verbal or limited verbal communication was therefore typical. Sarah's teacher, Mary Murphy, was in her third year as a teacher, her first as a kindergarten teacher. Sarah communicated with Murphy by showing her pictures she (Sarah) had drawn or by speaking in one- or two-word sentences.

On Thursday, January 4, 1990, Sarah slept while her class was being told a story and attendance was being taken. When she awoke, she was crying. Murphy asked Sarah why; Sarah did not respond. Murphy persisted, asking Sarah whether anyone in the class had hurt her. Sarah shook her head "no." When Murphy asked whether someone at home had hurt her, Sarah nodded "yes." Then, according to Murphy, she "went down the list of people that were in [Sarah's] life . . . all of which [Sarah] shook her head, no, to. When [Murphy] asked [Sarah] if her father was hurting her, her eyes welled up in tears and she shook her head, yes, and she started to really cry."

Later that day, Murphy talked to Sarah again and asked Sarah to indicate on a doll she was holding where Sarah was being hurt. Sarah pointed to the groin area of the doll. In order to make sure she was not misunderstanding Sarah, Murphy asked Sarah to indicate again where she was being hurt and Sarah again pointed to the doll's groin area. Murphy did not report the incident that day.

During the following day, Friday, January 5, according to Murphy, Sarah drew a picture of two figures. Murphy asked Sarah what was happening in the picture and Sarah said "Sarah and . . . Daddy kneeling, hurt," and then fell silent.

Murphy reported Sarah's behavior to her superiors at P.S. 230 as required by sections 413 and 415 of the New York Social Services Law. 3 She also reported

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that Sarah often slept in class and that she did not interact with other children. A guidance counselor at P.S. 230 in turn reported the matter by telephone to the New York State Department of Social Services' Central Register of Child Abuse and Maltreatment that day, also as required by law.

An operator at the State agency made a record of the counselor's call on a department "Form 2221": "Sarah is speech and language delayed. Sarah is unable to stay awake during the day. Ch[ild] often naps off and on all day. Ch[ild] is nervous and withdrawn. Ch[ild] is afraid of fa[ther]. Fa[ther] hurts her vaginal area at night." The department telecopied the Form 2221 to defendant Nat Williams, a supervisor in the child protective unit of the...

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