Liability For Removal Errors

Circuit Mulls Liability of City Caseworkers for Removal Errors

Mark Hamblett

10-08-2009
Whether New York City social workers and agency officials should face liability for wrongfully or mistakenly removing children from allegedly abusive homes was at the center of oral arguments yesterday at the U.S. Court of Appeals for the Second Circuit.
Judges Jose A. Cabranes and Roger Miner, and Southern District Judge Jed S. Rakoff, sitting by designation, heard argument in four cases concerning the proper degree of legal exposure for the city and employees of its Administration for Children’s Services (ACS).
Carolyn Kubitschek of Lansner Kubitschek Schaffer & Zuccardy in Manhattan, arguing for parents, foster parents and children who have been wrongfully removed from their homes, called the city agency “out of control.” She contended that agency officials should be liable under federal civil rights law for relying on a doctor criticized for over-reporting child abuse, and that caseworkers should be held liable for prematurely removing a child or failing to act quickly in returning them once the parent or foster parent has been cleared of responsibility for the child’s injury.
But in arguing for immunity, Deborah Brenner of the New York City Law Department told the court that caseworkers should not be held liable for decisions they make under pressure. “Caseworkers walk a very fine line every day,” she said. “They have to balance the right of the parent to family integrity” versus the safety of the children. New York City was represented by four senior counsels with the Law Department’s Appeals Division: Tahirih Sadrieh argued Green v. Mattingly, 08-4636-cv; Ms. Brenner argued V.S. v. Mattingly, 08-5157-cv; Drake Colley argued Graham v. Mattingly, 08- 5271-cv; and Janet Zaleon argued Cornejo v. Bell, 08-3069-cv.

The panel was openly skeptical about Ms. Zaleon’s argument in Cornejo that caseworkers and ACS lawyers should have absolute immunity for their actions. In Cornejo, caseworkers removed a baby who later died from injuries that included a fractured rib allegedly suffered when the mother was not home. It was later revealed the child died of a birth defect. Agency lawyers stuck by the removal in Family Court even after some staff said it should drop the case. The attorneys continued, the court was told, because there remained a belief the father may have shaken the baby.
“That’s a novel theory we don’t have any support for,” Judge Cabranes said. Judge Miner said, “Absolute immunity is a pretty heavy concept.” He also wanted to know if there is “any historical or common law basis for this assertion?” Ms. Zaleon said the situation with caseworkers and lawyers at ACS was unique because, unlike police officers and prosecutors, they work for the same agency and are supposed to assist the court in determining what is in the best interests of the child on an ongoing basis. But Ms. Kubitschek said the attorneys in Cornejo “stepped out of that function when they resisted their clients’ efforts” to drop the case, she said. “They were acting contrary to the
instructions as given” by caseworkers and supervisory staff.

Agency’s Responsibilities

A central figure in the arguments was Dr. Deborah Esernio-Jenssen of Long Island Jewish Hospital, who has been criticized by Family Court judges for incorrect diagnoses of Shaken Baby Syndrome. The issue is whether ACS workers, knowing about Dr. Esernio-Jenssen’s reputation, could be held liable for relying on her opinion in what turned out to be the mistaken removal of a child. Ms. Brenner said it “can’t be the correct constitutional standard” to require “that ACS has to look into a history of over-reporting.” “The plaintiffs would ask this court to place the onus on the ACS” and demand that caseworkers in a situation of likely child abuse look into a doctor’s history, she said. But Ms. Kubitschek said Dr. Esernio-Jenssen “has a long history of giving incorrect diagnoses,” and the agency should have gotten a second opinion. Simply because a doctor has a medical degree, she said, “does not entitle caseworkers whose duty is to do what’s best for children to rely on a doctor who is biased.”

Ms. Brenner countered that it was enough that Dr. Esernio-Jenssen “was qualified by the state of New York and she has given ACS a list of injuries and a diagnosis.” Judge Miner asked, “Suppose she had been wrong on a number of cases and ACS knew it,” would that be enough? “Yes,” Ms. Brenner responded. “ACS has some very serious responsibilities here. ACS simply as a matter of policy can’t be required to check on a doctor’s reputation.” In the Graham case, a woman unsuccessfully sued the city after she had three grandchildren and five children removed from her home. The woman had been asleep two floors away while a friend of a relative attacked one of the children, an 11 year-old girl, and Ms. Kubitschek said the agency removed all the children even though the person the girl “accused of abusing her had been arrested and the other children weren’t in danger.”
This ran contrary to the holding in another case Ms. Kubitschek and partner David Lansner had handled, Nicholson v. Scopetta, 344 F.3d 154 (2003), where the circuit, with guidance from the New York Court of Appeals, held in part that ACS should not insist on keeping the child out of the home once the danger had been removed. She also told the judges that ACS has a number of practices and policies that conflict with court holdings on due process and other violations.
She said the agency does not provide pre-deprivation hearings before removal, the agency “resolves any ambiguity in favor of removing the children,” officials make it “acceptable to misrepresent facts” in Family Court, and the “parent is required to explain how a child was injured even if the parent wasn’t present during the injury and someone else was caring for the child.” The law department’s Mr. Colley countered that, in the Graham case, a jury had correctly found that “the defendants’ lawful actions were shown not to violate procedural due process rights” and the Fourth Amendment claim brought by the grandmother “was rightfully dismissed.”
Mr. Colley said the grandmother missed the 11-year-old’s injuries, which were only discovered by school officials the following day. Ms. Kubitschek responded that the grandmother “could not have been expected to anticipate this would happen” and the 11 year-old child “said it hadn’t happened to her before.”
@|Mark Hamblett can be reached at mhamblett@alm.com.

Source:

http://familyrightsassociation.com/news/archive/2009/oct/CAK_NYLJ.pdf