van Emrik v. Chemung County Dept. of Social Services

• Decision Date: 13 August 1990
• Docket Number: D,No. 806,806
• Citation: 911 F.2d 863
• Parties: 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. ocket 89-9005.
• Court: U.S. Court of Appeals — Second Circuit

Page 863

911 F.2d 863

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.

Argued Feb. 7, 1990.

Decided Aug. 13, 1990.

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 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, the defendants and the county attorney then visited the Family Court Judge, whose chambers are three blocks from the hospital. The Judge signed an order temporarily placing the child in the custody of the Department, but instructed the defendants to ask the parents to agree to a temporary placement of the child with the Department and to serve the order only if they refused. Upon their refusal, the order was served, and the child was taken to a foster home.

At the urging of the family's pediatrician, the child was returned to the hospital within a few hours, under an arrangement prohibiting discharge without the Department's consent. The Department continued its investigation, which ended without any finding of responsibility for the injury. The child was discharged to the custody of the parents on May 23.

Discussion

The parties do not dispute that the appellants have some constitutional rights of both a substantive and procedural nature, affording them protection against arbitrary state action interfering with their parental custody. See Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.1977); cf. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (establishing "clear and convincing" standard of proof for permanent termination of parental custody). It is also undisputed that the individual appellees enjoy qualified immunity from liability for damages if at the time of the pertinent episode it was not clear that the actions they took violated established constitutional rights, or if it was objectively reasonable for them to believe that their actions did not violate such rights as were then clearly established. See Robison v. Via, 821 F.2d 913, 920-21 (2d Cir.1987). Appellants challenge both the decision of the individual defendants in acting to remove their child from their custody and the manner of implementing that decision. We agree with Judge Larimer that with respect to both aspects of the challenged conduct, the individual defendants are entitled to the defense of qualified immunity.

Though a decision to remove a child from parental custody implicates the constitutional rights of the parents, it obliges protective services caseworkers to choose between difficult alternatives in the context of suspected child abuse. If they err in interrupting parental custody, they may be accused of infringing the parents' constitutional rights. If they err in not removing the child, they risk injury to the child and may be accused of infringing the child's rights. ¹ It is precisely the function of qualified immunity to protect state officials in choosing between such alternatives, provided that there is an objectively reasonable basis for their decision, whichever way they make it. Such a basis existed in this case. The defendants were confronted with an infant who had suffered a broken leg, characterized by an attending physician as "very suspicious" of child abuse. Quick inquiry of the people possibly responsible, the parents and the baby-sitter, failed to discover how the injury was sustained. The defendants consulted with superiors, obtained a court order, and executed it only after the parents refused to permit a temporary interruption of their custody. The issue is not whether it was absolutely essential to remove the child or whether a more sensitive course might have been to leave the child hospitalized pending further investigation. The issue...