Gottlieb v. County of Orange

• Decision Date: 15 December 1994
• Docket Number: No. 93 Civ. 0466 (VLB).,93 Civ. 0466 (VLB).
• Citation: 871 F. Supp. 625
• Parties: Andrew GOTTLIEB and Jean Gottlieb, individually and as the natural parents of infants Dawn Gottlieb and Lee Gottlieb, Plaintiffs, v. The COUNTY OF ORANGE, the 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, Linda E. Douthart 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.
• Court: U.S. District Court — Southern District of New York

871 F. Supp. 625

Andrew GOTTLIEB and Jean Gottlieb, individually and as the natural parents of infants Dawn Gottlieb and Lee Gottlieb, Plaintiffs, v. The COUNTY OF ORANGE, the 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, Linda E. Douthart 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.

No. 93 Civ. 0466 (VLB).

United States District Court, S.D. New York.

December 15, 1994.

Nelson M. Farber, Akst & Akst, New York City, for plaintiffs.

Phyllis Ingram, MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, NY, for defendants.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

I

This civil rights action brought under 42 U.S.C. 1983 implicates the tension between familial privacy and the protection of children from sexual abuse. The dispute arises from a direction to an allegedly abusive father to leave his home where he had a 5-year old girl and a 4-year old son, or face removal of his daughter; the issue is whether the investigation leading to the direction was fair and adequate.

Defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs have cross moved for partial summary judgment against all defendants.

Plaintiffs' motion for summary judgment is denied. Defendants' motion for summary judgment is granted as to all claims against the individual defendants in their individual capacities, which are accordingly dismissed.¹

Defendants' motion is denied as to the County of Orange and the Orange County Department of Social Services.

II

The basic facts are uncontroverted. On January 24, 1990 a source claiming anonymity telephoned the New York State Department of Social Services and stated that the father "pulls down his pants and underwear and dances around the living room in front of the children." The source asserted that this had occurred more than one time and that the mother was present and laughed.

The report was referred for investigation to the Orange County Child Protective Services. Though a County caseworker attempted to speak to the daughter and attempted to make a home visit, neither attempt was successful.

On January 29, 1990, the source made another complaint alleging that "Father wakes up his daughter at night and gets into bed with child. Father touches her breasts." In making this second report of abuse, the source no longer chose to remain anonymous but requested confidentiality. The source was recontacted and made further allegations that the father slept with his daughter and hugged her tight.

The questions put to the source focused on the substantive allegations of the source, without background inquiries to evaluate the source's reliability, or whether the source may have harbored any malice toward the plaintiffs.

After an interview with the family's son which produced no evidence of abuse, a County caseworker interviewed the daughter for 45 minutes to one hour. A school nurse was present for most of the interview with the daughter, but not for what the caseworker calls the "rapport-building" portion of the interview.² The caseworker first asked the daughter questions about her father's pants falling down, to which the daughter giggled.

The daughter then asked the caseworker how she knew of this incident since it was an "in house secret". The caseworker responded that she knew all in house secrets and that it was okay for the daughter to tell her such secrets. The interview then led to such questions as "has anyone touched you here?" while pointing to private parts. The daughter answered "yes." When asked by the caseworker who it was that touched her, the daughter identified her father. In addition, when asked "who knows about this?" the daughter answered "Mommy, grandma, and Aunt Michelle."³

The caseworker telephoned her supervisor to discuss the next step. Both agreed that the father or the daughter would have to leave the house. When faced with the choice of his daughter being removed from the house or leaving the house himself, the father chose to leave his home.

III

Few other events elicit such abhorrence and disgust in our society equal to that evoked by sexual abuse of children. It becomes even more difficult to accept when the perpetrator is a family member. Child protection services' basic function is to make sure that unprotected children are cared for and that abuse is stopped.

The Fourteenth Amendment of the Constitution of the United States has been held to protect the liberty interest of parents in the "care, custody and management of their child."⁴ Such protection patently falls short of allowing a parent sexually to abuse a child. At such a point the constitutional rights of the parents are outweighed by the interests of the child, and of the state in protecting children. Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640 (1981); Stanley v. Illinois, 405 U.S. 645, 649, 92 S.Ct. 1208, 1211-12, 31 L.Ed.2d 551 (1971) (A State's right to protect minor children rises to the level of a duty).

If the child's life or health is in "imminent danger" a child protection unit may remove a child from its home without first securing a Court Order. N.Y. Family Court Act § 1024 (McKinney Supp.1994); Duchesne v. Sugarman, 566 F.2d 817 (1977). A high level of skill and training is essential to insure that children are protected from abuse and that families are protected from ill-advised interference and disruption, especially on an emergency basis without opportunity for a prior hearing.⁵

Whether a child is in "imminent danger" is necessarily a fact-intensive determination. It is not required that the child be injured in the presence of a caseworker nor is it necessary for the alleged abuser to be present at the time the child is taken from the home. It is sufficient if the officials have persuasive evidence of serious ongoing abuse and, based upon the best investigation reasonably possible under the circumstances, have reason to fear imminent recurrence. Robison v. Via, 821 F.2d 913, 922 (2d Cir.1987). Since this evidence is the basis for removal of a child, it should be as reliable and thoroughly examined as possible to avoid unnecessary harm to the family unit.

IV

Under the N.Y. Family Court Act § 1024(c), immunity from civil and criminal liability is granted to all persons or institutions "acting in good faith in the removal or keeping of a child." Under 42 U.S.C. § 1983, good faith on the part of a social worker or other state officer constitutes a valid defense of qualified immunity unless the individual defendant involved "knew or reasonably should have known that the action taken within the officer's sphere of official responsibility would violate ... constitutional rights ..." Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982) quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975).

Under this test, if available information shows an emergency situation such that leaving the children in the custody of the parents presents an imminent danger of harm, the authorities may, and at times must, act to remove the children without parental consent or ultimately necessary procedural safeguards.⁶ On the other hand, reliable indications of an emergency must exist. Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977); Franz v. United States, 707 F.2d 582 (D.C.Cir.1983); see Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640 (1980) ("Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision" with respect to the termination of parental status). Hasty and poorly made decisions to remove children from their homes violate the constitutional rights of both parents and children.

The primary function of child protection services is to protect children. This entails not only the need to protect children from abuse but also the need to protect children's constitutional right to the guidance and supervision of a parent. Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.1977). Decisions to remove children from a home without conducting the best investigation reasonably possible violate the parents' and child's federal constitutional rights.

In determining that the individual defendants are entitled to qualified immunity, the test is whether it was objectively reasonable for them to believe that their acts did not violate the parents' constitutional rights. Robison v. Via, 821 F.2d 913, 921 (2nd Cir. 1987).

In this case the record establishes an objectively reasonable basis for the case-worker and her supervisor, unless trained in a more sophisticated, less suggestive means of interviewing, to believe there existed an "imminent danger" to the daughter.

Given the procedures and training they were given, it was objectively reasonable for the individual defendants to believe that their acts were necessary to avoid a serious risk of imminent harm to the child and hence did not violate the plaintiffs' constitutional rights. Plaintiffs' claims against the individual defendants are unsupportable.⁷

To hold individual defendants liable where they acted in reasonable good faith would greatly inhibit the decisionmaking processes of child welfare workers. In re Scott County Master Docket, 672 F.Supp. 1152, 1167 n. 2 (D.Minn.1987); See also Archer v. Globe Motorists, 833 F.Supp. 211, 213-14 (1993). Individual caseworkers and supervisors facing the possibility of losing their life savings in a law suit might allow fear to influence their decisions, intentionally or otherwise. If individual caseworkers are less likely to function effectively due to...