Gottlieb v. County of Orange, 852

• Decision Date: 29 May 1996
• Docket Number: No. 852,D,852
• Parties: Andrew GOTTLIEB, and Jean Gottlieb, individually and as the natural parents of infants Dawn Gottlieb and Lee Gottlieb, Plaintiffs-Appellants, v. The COUNTY OF ORANGE, Orange County Department of Social Services, Esther Coppola, in her individual capacity and in her official capacity as an employee of the County of Orange and the Orange County Department of Social Services and Linda E. Douthert, in her individual capacity and in her official capacity as a supervisory employee of the County of Orange and the Orange County Department of Social Services, Defendants-Appellees, Todd Zeltman, New York State Trooper, in his individual capacity, Defendant. ocket 95-7535.
• Court: U.S. Court of Appeals — Second Circuit

Page 511

84 F.3d 511

Andrew GOTTLIEB, and Jean Gottlieb, individually and as the natural parents of infants Dawn Gottlieb and Lee Gottlieb, Plaintiffs-Appellants, v. The COUNTY OF ORANGE, Orange County Department of Social Services, Esther Coppola, in her individual capacity and in her official capacity as an employee of the County of Orange and the Orange County Department of Social Services and Linda E. Douthert, in her individual capacity and in her official capacity as a supervisory employee of the County of Orange and the Orange County Department of Social Services Defendants-Appellees Todd Zeltman, New York State Trooper, in his individual capacity, Defendant.

No. 852, Docket 95-7535.

United States Court of Appeals Second Circuit.

Argued Feb. 2, 1996.

Decided May 29, 1996.

Nelson M. Farber, New York City (Akst & Akst, New York City, on the brief), for Plaintiffs-Appellants.

Phyllis A. Ingram, Nyack, New York (MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, New York, on the brief), for Defendants-Appellees.

Lansner & Kubitschek, New York City (Carolyn A. Kubitschek, New York City, of counsel), filed a brief for amicus curiae National Coalition for Child Protection Reform in support of Appellants.

Before: OAKES, KEARSE, and WINTER, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiffs Andrew and Jean Gottlieb (the "Gottliebs") appeal from so much of a final judgment of the United States District Court for the Southern District of New York as dismissed their claims under 42 U.S.C. § 1983 (1994) for compensatory and punitive damages against defendants County of Orange and Orange County Department of Social Services (collectively the "County") and two County employees, Esther Coppola and Linda E. Douthert, for actions taken allegedly in violation of plaintiffs' due process rights during a County investigation into allegations that Andrew had sexually abused plaintiffs' two children. The district court, Vincent L. Broderick, Judge, granted partial summary judgment dismissing plaintiffs' claims against Coppola and Douthert on the ground of qualified immunity. See Gottlieb v. County of Orange, 871 F.Supp. 625 (1994) ("Gottlieb I "). Thereafter, the court, Charles L. Brieant, Judge, granted summary judgment in favor of the County on the ground, inter alia, that the undisputed facts established that the County had adequately trained its caseworkers. See Gottlieb v. County of Orange, 882 F.Supp. 71 (1995) ("Gottlieb II "). On appeal, plaintiffs challenge both summary judgment decisions, contending that they were entitled to summary judgment in their favor or that there were factual issues that precluded summary judgment against them. For the reasons that follow, we disagree and we affirm the judgment of the district court.

I. BACKGROUND

In 1990, the Gottliebs lived in Orange County, New York, with their daughter Dawn, age five, and their son Lee, age four. The County, through its Child Protective Services agency, investigates reports of child abuse in Orange County. On January 24, 1990, the County received from a state agency a report of an anonymous complaint of child abuse in the Gottlieb family.

A. The Abuse Investigation

As recorded by the state agency, the January 24 complaint about the Gottliebs stated that "Father pulls down his pants and underwear and dances around the living room in front of the children. This has occurred more than once. Mother is present when this occurs and laughs about it." On January 29, the County received another complaint; the complainant no longer sought anonymity and said she was the source of the [y]esterday, Father pulled down his pants and underwear and danced around the living room. This has happened in the past. Mother is aware of this and she thinks that it's funny. Father wakes Dawn up at night and gets into bed with child. Father tickles Dawn's breasts.

                January 24 complaint.   The County's record of the complaint stated that according to the complainant ("Source")
                

An attached comment sheet also noted:

Dawn stated "Father tickles my boobies". Dawn also said that Father wakes her up and tells her that he has to get in bed with her because she can't sleep. Father then makes her hold him tight. Father tells child not to tell Mommy. Source is extremely concerned about confidentiality. Source watches Dawn after school at 3 p.m. and she picks Lee up at noon from nursery school. Source made first report, but was anonymous. Source wants contact this time.

Coppola, a senior caseworker for the County, was assigned to investigate the matter and was given the above information.

On January 30, Coppola contacted the Source, who repeated the substance of the above communications. In questioning the Source, Coppola focused on the substance of the allegations and did not conduct "background inquiries to evaluate the source's reliability, or whether the source may have harbored any malice toward the plaintiffs." Gottlieb I, 871 F.Supp. at 627-28. In her deposition, Coppola stated that though she did not specifically ask whether the Source had any malice towards the Gottliebs, she saw no evidence of malice in the Source's responses to the questions that were asked.

On January 31, Coppola went to Lee's nursery school, but Lee was absent; Coppola spoke to the principal, though not to Lee's teacher. The principal said that Lee had had no behavioral problems.

1. The Interviews and Events of February 1

On the following day, February 1, Coppola interviewed, seriatim, Lee, Dawn, their mother, and their father. Lee, interviewed at his nursery school, "did not disclose any abuse"; he laughed when asked about his father's pants falling down.

Coppola then talked with Dawn at her school in an interview lasting 45 minutes to an hour; Coppola took extensive notes of the interview and was deposed on the subject for several days. The school nurse was present for all but the first 10 minutes of the interview. At the outset, Coppola sought to build rapport with Dawn, stating that Coppola's job was "to protect children." Coppola also asked questions designed to measure Dawn's ability to distinguish fact from fantasy. She determined that Dawn could count on her fingers; knew some colors, her age, and the names of family members; could remember and describe gifts, toys, and her birthday; knew that Coppola could not walk up a wall or fly, and that only birds and planes fly; and was familiar with "non-threatening body parts" such as Coppola's nose and eyes. Dawn played with toys brought by Coppola and said she wanted to draw. Dawn drew pictures that she then covered with black.

Before the nurse joined them, Coppola asked Dawn "when [Dawn] was going to tell about Daddy losing his pants." Coppola testified at her deposition that Dawn, who "thought it was pretty funny,"

looked at me and she said ... "How do you know that?" And she said, "It's an in-house secret, and daddy doesn't like tattletales." And I said, "It's okay. You can tell me." And then she said how daddy lost his pants and everybody was laughing....

Coppola told Dawn that it was all right to tell because Coppola knew "all in house secrets." In the presence of the school nurse, Coppola asked whether Dawn knew other body parts, and Dawn identified breasts, buttocks, and the vaginal area in colloquial terms (e.g., "boobies" for breasts). Coppola then asked, "Remember we just talked about in house secrets and you told me about Daddy['s] pants falling down[?]"; Dawn responded that she did. Coppola reiterated that it was all right for Dawn to talk about in house secrets because Coppola knew about them, but that Dawn had to tell the truth: "it[']s OK to tell but it has to be true[.] It has to really Coppola asked, "Did Daddy[']s pants fall down?", and Dawn "giggled yes." Then Coppola, indicating her own private areas, asked, "Has any one touched you here[,] here[,] or here[?]"; Dawn said "[Y]es." Thereafter, in response to a series of largely nonleading questions (e.g., "Who touches[?]"; "What does he touch[?]"; "With what[?]"; "Where[?]"; "Who knows about this[?]"; and "How do you know they know this[?]"), Dawn proceeded to state that on three occasions in the dark in her room, her father had inserted and moved his finger inside her vaginal area. Dawn said her father also touched her brother's anus. Dawn said her mother, aunt, and grandmother knew that her father touched her, that her mother and grandmother had told her father to stop, and that her parents had fought about it. Her father had stopped for a while but then had resumed. Dawn said she had never touched her father's private parts but that her brother had touched her private parts after seeing her father touch them. Dawn indicated that she was afraid to have anyone outside of the family learn of these events and feared that she would be punished if she talked about them outside of the home.

                happen."   Coppola repeatedly reassured Dawn that what had happened was not her fault and told Dawn it was all right to tell what had happened, so long as she was telling the truth
                

After the interview, Coppola asked the nurse whether Dawn had had any behavior problems; the nurse subsequently informed Coppola that there had been no behavior or attendance problems. Coppola also talked with Dawn's teacher and, speaking only in generalities, asked her to "support" Dawn and to inform Coppola if any problems arose.

Coppola immediately reported to Douthert, her supervisor, the substance of Dawn's statements, and Douthert told Coppola to contact law enforcement. Coppola and a state trooper, defendant Todd Zeltman, proceeded to interview Dawn at Dawn's baby sitter's home. According to Zeltman's deposition, Dawn made statements confirming Coppola's account of the initial interview.

Coppola then interviewed Dawn's mother, Jean, who denied that Dawn had told her of any sexual abuse. Jean stated that Dawn could have gotten the idea of her father inserting and moving his finger in her...