Doe v. New York City Dept. of Social Services
| Decision Date | 13 May 1981 |
| Docket Number | D,No. 464,464 |
| Citation | 649 F.2d 134 |
| Parties | Maria DOE and Cruz Doe, individually and on behalf of their minor son Manuel Doe, Plaintiffs, and Anna Doe, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES et al., Defendants, and Catholic Home Bureau, Defendant-Appellee. ocket 80-7531. |
| Court | U.S. Court of Appeals — Second Circuit |
Carolyn A. Kubitschek, New York City, Michael D. Kaufman, Louise Gruner Gans, Edward Simon, Catherine P. Mitchell, New York City, for plaintiff-appellant.
Frederick J. Magovern, New York City, Peter B. Skelos, New York City, for defendant-appellee.
Before OAKES and MESKILL, Circuit Judges, and CARTER, District Judge. *
Appellant Anna Doe brought this action pursuant to 42 U.S.C. § 1983 seeking redress for the violation under color of state law of her First, Fourth, Fifth, Ninth and Fourteenth Amendment rights. The source of her complaint was the various forms of child abuse, allegedly by rape, severe beating, and forcible withdrawal from school, inflicted on her by her foster father in the foster home in which she was placed. She seeks monetary damages from the Catholic Home Bureau, the agency which placed her in the home and was charged with the duty of supervising her foster care. She alleges that the agency's failure to supervise her placement adequately and to report her situation to the New York City Department of Social Services as a suspected case of child abuse led to the continuation of her mistreatment in the home.
After trial by jury, verdict was entered in favor of defendant on the issue of liability. Plaintiff now appeals, alleging error in the court's jury charge detailing the elements of liability under § 1983, and in several of its evidentiary rulings. The latter includes admitting into evidence testimony that plaintiff had recently had an out-of-wedlock child and refusing to give plaintiff's requested instruction that inferences about plaintiff's sexual conduct should not be taken as bearing on her credibility. Plaintiff also claims error in the exclusion of testimony pertaining to abuse suffered by her foster sister under circumstances similar to those of plaintiff and the exclusion of portions of a memorandum from the Assistant Commissioner of Social Services, reminding defendant to report all cases raising any suspicion of child abuse.
There is substantial agreement as to most of the underlying facts of the case. Anna was born in April, 1961 and, when she was two years old, was placed in foster care along with her sister Evelyn, in the legal custody of the New York City Commissioner of Welfare. The Commissioner arranged for appellee Catholic Home Bureau to supervise the care of Anna and her sister, beginning January 5, 1964, and pursuant to this duty, the Bureau placed both girls in the home of Frank and Josephine Senerchia, whom it had investigated and certified on September 30, 1963. In 1965, the Bureau placed two additional girls, Lynn and Annette Wong in the Senerchia home.
The Bureau's duties did not end with placement, however. As a placement agency, it was charged by state law with the task of periodically inspecting and annually recertifying the Senerchia home. (New York Social Services Law §§ 376, 378) (McKinney). Its alleged failure to perform this duty is the gravamen of plaintiff's complaint.
It is uncontested that Anna remained in the Senerchia home for more than thirteen years and that initially the family environment appeared to be a promising one. The Senerchias had come well recommended by the parish priest, physician, neighbors, friends and Frank Senerchia's employer. As part of its investigation and decision to certify the home, the Bureau prepared a report which described Senerchia, a New York City policeman, as "a pleasant man, quite ordinary in achievements, (but) reliable, helpful and endowed with Christian Charity," and as someone "genuinely fond of children and (having) a genuine paternalistic interest in them." Frank Senerchia expressed the view that corporal punishment was sometimes good for children, but did not believe that spanking "should be the one and only course for parents."
In spite of this hopeful beginning, the record discloses a pattern of persistent cruelty to Anna at the hands of her foster father. Anna and her foster sisters testified that starting when she was about ten years of age, she was regularly and frequently beaten and sexually abused by Senerchia. Plaintiff testified that he beat her with his hands and belt all over her body, threw her down the stairs, and on one occasion lacerated her with a hunting knife, that he confined her to her room for days at a time, and ultimately forced her to have intercourse and oral sexual relations with him.
Plaintiff further testified that her father threatened to institutionalize her if she ever told anyone what he was doing and that when a priest, whom her foster sister Lynn had contacted, attempted to discuss allegations of child abuse with Senerchia, Lynn was severely beaten for contacting the priest. Family members were afraid of Senerchia and did not directly inform the Catholic Home Bureau of the abuses until August, 1977, when Josephine Senerchia, having been told that her husband was planning to seek a divorce, advised agency workers that she had found Anna and Senerchia in bed together. All foster children were removed from the Senerchia home shortly thereafter.
From 1964 through July, 1977, the Bureau had annually evaluated and approved the Senerchia household as a foster home for Anna. Notwithstanding this supervision, the Bureau never became aware of the extent of Anna's abuse until August, 1977, after six years of it had elapsed. Plaintiff contends that the agency's failure to discover the abuse to which she had been subjected for some six years before defendant acknowledged that something was wrong was due, at least in part, to its failure to make a thorough periodic investigation of her circumstances and to comply with its statutory duties.
Plaintiff maintains that as she grew older, visits to the home by the agency's case workers declined in frequency, so that between 1968 and 1972, for example, there were periods, once two and a half years and once fourteen months, when no one from the agency visited the Senerchia home, whereas the previous and usual pattern had been four or five home visits a year. Defendant maintains that additional contacts outside the home compensated for any shortage of visits. It is uncontested, however, that when agency workers did visit the home, discussions were almost invariably conducted in the presence of Senerchia. Plaintiff contends that this inhibited discussion of her relations with her foster father since heeding his repeated threats to have her institutionalized, she made no mention of being mistreated.
Although one case worker had expressed suspicion in 1967 that Senerchia might have "severe emotional problems," most Bureau personnel continued to give the home a favorable rating in spite of nagging suspicions that the father was excessively involved with intimate details of the girls' personal hygiene, and after 1973 had become increasingly resistant to the agency's supervision. A 1976 report found him to be "resistive to intervention by agency workers (and) difficult to schedule appointments with."
The agency's 1975 annual reauthorization report to the City of New York Human Resources Administration described efforts to see Anna alone as having "proved futile due to the foster family's attitude towards the agency."
In early January, 1975, the Bureau received its first clear tangible evidence of things going awry with Anna when she was removed from school by her father without the agency's knowledge or consent.
On January 7, the agency, after discovering that Anna had been removed from school, questioned Senerchia and was told that Anna had been engaged extensively in group sex with the other children at school, that this had gone on since the first grade, and had included full sexual intercourse, even between first-graders. The children's sexual congress, they were told, took place in empty classrooms, hallways and cafeteria, and occurred four or five times a day. Senerchia claimed that Anna had told him she would be forced to resume sexual activities when she returned to school, and for that reason he was enrolling Anna in a parochial school.
Three days later agency workers met with Anna. It is conceded that Anna, claiming that her father had told her never to talk about such matters with anyone, repeatedly refused to discuss the incident with them. Top agency personnel decided that Anna should be seen by the agency psychologist, Dr. Selma Lewis. Dr. Lewis accepted as true the allegations of Anna's sexual behavior with classmates, characterized Senerchia as a warm and sympathetic foster father, and concluded that Anna was "secure in the protectiveness and caring of her foster parents." However, agency records show that the scope of her investigation was limited. She had not read the background report on Senerchia, and neither she nor other agency personnel contacted school authorities until the truant officer was interviewed in mid-April.
Anna remained out of school throughout January and continuing through June, 1975. She met for a second time with Dr. Lewis on January 24, 1975, to assess her learning skills and determine appropriate school placement. On February 18, 1975, at a conference with Senerchia and Anna, the agency informed them that to get a special class placement Anna would need to see a psychiatrist and for this purpose an appointment was made with Dr. Lois Bellinger deAlvarado. It was also decided that the foster parents should be seen by a psychiatrist as well, but this decision was never implemented. On March 19, Anna met with Dr. deAlvarado, an expert in child abuse, who based on...
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