Nicholson v. Scoppetta, Docket No. 02-7079.

Citation344 F.3d 154
Decision Date16 September 2003
Docket NumberDocket No. 02-7079.
PartiesSharwline NICHOLSON, individually and on behalf of her infant children, Destinee Barnett and Kendell Coles and on behalf of all others similarly situated; Destinee Barnett, Kendell Coles, infants; Sharlene Tillett, individually and on behalf of infants Winston Denton and Uganda Gray; Ekaete Udoh, individually and on behalf of her infant children, Edu Udoh, Ima Udoh, Nsikak Udoh and Asuno Udoh; and J.A. and G.A., infants on behalf of all others similarly situated, Plaintiffs-Appellees, v. Nicholas SCOPPETTA, individually and as Commissioner of Administration for Children's Services; City of New York; George E. Pataki, as Governor of the State of New York; John E. Johnson; and State of New York, Defendants-Appellants, Nat Williams, individually and as manager; Bethy Victorin, Denise Degannes, Samuel Halstion, Lisa Clark, Howard Safir, Vivian Lopez, also known as Jane Lopez, Arlene Irizarry, Vincent Stropoli, Brian Martin, also known as James Roe, Jonathan Lippman, Jane Doe, individually and attorney for the Administration for Children's Services John Doe, individually and as Police Officers, Ymsi Holloway, individually and as Supervisor, Cheryl Constantine, individually and as Supervisor, Nidia Cordero, individually and as Supervisor, Dorabella Delamothe, individually and as Manager, Shakira Panther-Wilburg, individually and as caseworker, Sylvia Parris, individually and as a caseworker for the Administration for Children's Services, Jane Dorabella, individually and as supervisor for the Administration for Children's Services and John Tai, individually and as supervisor for the Administration for Children's Services, Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Carolyn A. Kubitschek (David J. Lansner, Joanne N. Sirotkin, Brett S. Ward, on the brief), Lansner & Kubitschek, New York, NY, Jill M. Zuccardy, Christine Fecko, Sanctuary for Families, Center for Battered Women's Legal Services, New York, NY, on behalf of Plaintiffs-Appellees Sharwline Nicholson, Sharlene Tillett, Ekaete Udoh, and others similarly situated.

Barrie Goldstein (Monica Drinane, Attorney-in-Charge, Henry Weintraub, Karen Walker Bryce, Judy Waksberg, Betsy Kramer, of counsel), The Legal Aid Society, Juvenile Rights Division, New York, NY, Karen Freedman, Executive Director, Lawyers for Children, Inc., New York, NY, on behalf of Plaintiffs-Appellees Destinee Barnett, Kendell Coles, Winston Denton, Uganda Gray, Edu Udoh, Ima Udoh, Nsikak Udoh, Asuno Udoh, J.A., and G.A., and all others similarly situated.

Alan G. Krams, Assistant Corporation Counsel (Leonard Koemer, Jonathan Pines, Martha Calhoun, Carolyn Wolpert, Krisin M. Helmers, of counsel), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, on behalf of Defendants-Appellants Nicholas Scoppetta and the City of New York.

Robert H. Easton, Assistant Solicitor General (Caitlin J. Halligan, Solicitor General, Michael S. Belohlavek, Deputy Solicitor General, of counsel), for Eliot Spitzer, Attorney General of the State of New York, New York, New York, on behalf of Defendant-Appellants George E. Pataki, John E. Johnson, and the State of New York.

Lawrence S. Lustberg, Philip G. Gallagher, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., Newark, NJ, Lenora M. Lapidus, Emily J. Martin, Women's Rights Project, American Civil Liberties Union Foundation, New York, NY, on behalf of Amicus Curiae American Civil Liberties Union.

Laura K. Abel, David S. Udell, Brennan Center for Justice, New York, NY, on behalf of Amicus Curiae Brennan Center for Justice.

Susan Lambiase, Marcia Robinson Lowry (Eric Thompson, of counsel), Children's Rights, New York, NY, Amit Tandon, White & Case, LLP, New York, NY, on behalf of Amici Curiae Children's Rights, Citizens' Committee for Children of New York, Inc., Judge David J. Bazelon Center for Mental Health Law, Juvenile Law Center, National Center for Youth Law and Youth Law Center.

Yisroel Schulman (Kim Susser, of counsel), New York Legal Assistance Group, New York, NY, on behalf of Amici Curiae Domestic Violence Report, Greater Upstate Law Project, the Greater Five Towns Young Men's & Young Women's Hebrew Association, InMotion, Kansas Coalition Against Sexual and Domestic Violence, Nassau County Coalition Against Domestic Violence, National Coalition Against Domestic Violence, New York Legal Assistance Group, SAKHI for South Asian Women, and STEPS to End Family Violence.

Wilbur McReynolds, Amicus Curiae pro se.

Joanne C. Fray, Law Offices of Joanne C. Fray, Lexington, MA, on behalf of Amicus Curiae National Coalition for Child Protection Reform, Inc.

Fernando R. Laguarda, Noam B. Fischman, M. Elizabeth Gomperz, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Washington, D.C., on behalf of Amici Curiae National Network to End Domestic Violence and National Network to End Domestic Violence Fund.

Lawrence E. Jacobs (Frank S. Moseley, Zachary S. McGee, Kelli Stenstrom, Michael Farbiarz, Elliot Moskowitz, John Gaffney, on the brief), Davis Polk & Wardwell, New York, NY, Michael Miller, Norman L. Reimer, New York County Lawyers' Association, New York, NY, on behalf of Amicus Curiae New York County Lawyers' Association.

Before: WALKER, Chief Judge, OAKES and KATZMANN, Circuit Judges.

Chief Judge JOHN M. WALKER, JR., dissents in a separate opinion.

KATZMANN, Circuit Judge.

Few matters are closer to the core of a State's essential function than the protection of its children against those who would, intentionally or not, do them harm. In this appeal, the City of New York and its chief child-welfare administrator challenge the determination of the United States District Court for the Eastern District of New York (Weinstein, J.) that the manner in which they have chosen to carry out this difficult task violates the Constitution. The District Court found that the City was at least inattentive to the custom or practice of its officers in "removing" children from the custody of a parent who had been battered by a spouse or paramour, based on the theory that the parent's failure to protect the child from witnessing the abuse was itself a form of child neglect. This practice, the District Court concluded, contravened protected substantive due process and procedural due process liberty interests of parents and children in staying together as a family. The District Court also held that the removals were unreasonable seizures, contrary to the safeguards of the Fourth Amendment. We agree that in some circumstances the removals may raise serious questions of federal constitutional law. We conclude, however, that uncertain issues of state law precede our own constitutional inquiry. Given our strong preference for avoiding unnecessary constitutional adjudication, as well as the importance of child safety to the State of New York, and the integral role New York's own courts play in the removal process, we choose to certify these state-law questions to the New York Court of Appeals.1

The Removal Process

The State of New York has the power to monitor and protect against abuse or neglectful treatment of the State's children. See, e.g., N.Y. Fam. Ct. Act §§ 611-671, 1011-1085 (McKinney 1999 & Supp.2003). For the most part, actual enforcement of the child protection laws is carried out by counties and municipalities. In New York City, a city agency known as the Administration for Children's Services ("ACS") bears primary responsibility for child protection. ACS carries out its mission in cooperation with a number of public and private entities, which provide it with data and other support, and in partnership with the Family Court itself, which ultimately must give legal sanction to any of ACS's enforcement decisions. ACS is also supervised by a state agency, the Office of Children and Family Services ("OCFS").

Most of ACS's activity begins with a reference from the State Central Register for Child Abuse and Maltreatment ("SCR"), a division of OCFS. SCR maintains a telephone hotline with a toll-free number, staffed around the clock, for reports of child abuse, neglect, or maltreatment. N.Y. Soc. Serv. Law § 422(2)(a). Although anyone with pertinent information can contact the SCR, certain individuals, such as health care professionals, school officials, social service workers, day care center employees, and law enforcement personnel are required by law to report suspicions of abuse or neglect. Id. §§ 413, 414. SCR screens reports it receives to ensure that the allegations and identifying information are sufficient to begin an investigation. Id. § 422(2)(b). If the report passes this initial screening, SCR transmits the report as well as any background information to a field office in the county where the child is located. Id.

ACS is responsible for investigating reports involving children in New York City. When an ACS field office receives a report from SCR, an applications worker forwards it to a supervisor, who then assigns a caseworker to investigate. A child protective manager ("CPM") oversees the supervisor-caseworker team. The CPM must approve major decisions, such as removing a child from his or her home or prosecuting a parent.

By statute, ACS must complete its investigations of complaints referred by SCR within sixty days. Id. § 424(6), (7). At the conclusion of the investigation, ACS must determine whether there is "credible evidence" to support the allegations. Id. § 412(5). If ACS concludes there is such evidence, it declares the report "indicated." Id. § 412(12). Otherwise, it must declare the report "unfounded." Id. § 424(7). The SCR maintains a record of these findings, which it may disclose in certain circumstances. Id. § 422-a.

ACS's function is not limited to investigating and reporting instances of abuse or neglect. During the course...

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