911 F.2d 863 (2nd Cir. 1990), 806, van Emrik v. Chemung County Dept. of Social Services

Docket Nº:806, Docket 89-9005.
Citation:911 F.2d 863
Party Name:Connie Fern VAN EMRIK and Richard H. van Emrik, individually and as parents of Lane Astrid van Emrik and Kate Anna van Emrik, Plaintiffs-Appellants, v. CHEMUNG COUNTY DEPARTMENT OF SOCIAL SERVICES and Nancy Smith, and Marcia A. Allen, individually and as employees of Chemung County Department of Social Services, Defendants-Appellees.
Case Date:August 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 863

911 F.2d 863 (2nd Cir. 1990)

Connie Fern VAN EMRIK and Richard H. van Emrik, individually

and as parents of Lane Astrid van Emrik and Kate

Anna van Emrik, Plaintiffs-Appellants,

v.

CHEMUNG COUNTY DEPARTMENT OF SOCIAL SERVICES and Nancy

Smith, and Marcia A. Allen, individually and as

employees of Chemung County Department

of Social Services,

Defendants-Appellees.

No. 806, Docket 89-9005.

United States Court of Appeals, Second Circuit

August 13, 1990

        Argued Feb. 7, 1990.

Page 864

        John C.T. Hayes, Watkins Glen, N.Y. (Connie Fern Miller, on the brief), for plaintiffs-appellants.

        Kevin M. O'Shea, Elmira, N.Y. (John F. O'Mara, Weeden A. Wetmore, Davidson & O'Mara, Elmira, N.Y., on the brief), for defendants-appellees.

        Before TIMBERS, NEWMAN, and ALTIMARI, Circuit Judges.

        JON O. NEWMAN, Circuit Judge:

        This appeal concerns the defense of qualified immunity in the context of state interference with parental custody rights. Connie and Richard van Emrik appeal from the September 6, 1989, judgment of the District Court for the Western District of New York (David G. Larimer, Judge) dismissing, on motion for summary judgment, their suit against the Chemung County Department of Social Services ("the Department") and two child protective caseworkers. We agree with Judge Larimer that no facts were shown creating any issue as to the County's liability and that the individual defendants were entitled to the defense of qualified immunity. We therefore affirm.

Background

        The following facts are not in dispute. The van Emriks have two daughters, Lane and Kate, who were, respectively, seven months and two years old at the time of the pertinent events. On May 13, 1986, upon the father's return home from work, the baby-sitter, in a departure from the normal routine, immediately took Lane upstairs and put her in her crib, where she fell asleep. The mother returned home shortly thereafter. When the infant awoke, the parents noted that she was not acting normally, and later that evening they noticed that one of her legs appeared "floppy." Mrs. van Emrik then took the child to the emergency room at a local hospital, where she was diagnosed as suffering from a spiral fracture of her right leg. The parents suspected that the baby-sitter had inflicted the injury.

        The emergency room physician told Mrs. van Emrik that a "hot line" report (of

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possible child abuse) would have to be made, a course of action the mother fully supported. The next day the report was transmitted to state welfare officials and relayed to the Chemung County Department of Social Services. The report stated that the parents had no explanation for the injury, but also indicated that the baby-sitter might have been responsible. In the parents' view, their lack of explanation meant they did not know the precise circumstances surrounding the injury, though they insist they at all times expressed the view that the baby-sitter bore responsibility. Upon receipt of the report, defendant-appellee Nancy Smith, a senior caseworker in the Department's Child Protective Unit, began an investigation. She interviewed the parents and had an investigator interview the baby-sitter. No explanation of the injury was provided. A physician expressed the opinion that the injury had not been caused by Lane's sister and that the nature of the injury was a "very suspicious" indication of child abuse. Another physician opined that the injury would require a significant amount of energy, though it could have occurred from an accidental fall.

        The child was scheduled for discharge from the hospital the following day, May 15. A physician's report notes that "she will be discharged to her home with the social worker's blessing." Upon learning of the imminent discharge, Smith requested the attending physician to perform a series of long-bone x-rays. According to Smith's report, the doctor said that he did not want to do the series because of radiation and asked why the request was made. Smith replied that she wanted to know if there were other fractures that had gone undetected and had healed. The doctor stated, the report continues, that he "could agree" with this reasoning and ordered the x-rays for the following morning. The parents were not consulted about these x-rays, and their consent was not obtained. Their understanding was that some additional x-rays of the injured leg were needed to be sure that the fractured bone had been set properly.

        Also on May 15, Smith consulted with her supervisor, defendant-appellee Marcia Allen. Both concluded that, with the cause of injury unascertained, the child could be in danger if returned home. After consulting with the county attorney and others, they decided to file a petition under section 1022 of the New York Family Court Act (McKinney 1983 & Supp.1990). Meanwhile a lawyer for the van Emriks had contacted the defendants and told them that he wished to be informed of any decision concerning removal of the child. The county attorney tried unsuccessfully to reach the parents' lawyer. Without alerting the parents, who were at the hospital,...

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