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Duchesne v. Sugarman


decided: September 28, 1977.


Appeal from orders of the United States District Court for the Southern District of New York, Charles M. Metzner, Judge, dismissing actions brought under 42 U.S.C. § 1983 against supervisory level municipal welfare employees and two private child-caring institutions for alleged due process violations in assuming and retaining the custody of two minor children without benefit of a hearing or court order. Reversed and Remanded for trial on issues of liability and damages.

Waterman, Gurfein, Circuit Judges, and Blumenfeld, District Judge.*fn*

Author: Blumenfeld

BLUMENFELD, District Judge:

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 seeking money damages. The gravamen of the claim is the allegedly unlawful and unconstitutional assumption and retention of the custody of two minor children without their mother's consent and without benefit of a hearing or court order. The action was initiated in August 1972 by Pauline Perez on behalf of herself and her two minor children. Named as defendants were four supervisory-level municipal welfare employees and two private child-caring institutions.

A jury trial was commenced in the United States District Court for the Southern District of New York, Charles M. Metzner, Judge, on April 21, 1976. Following plaintiffs' case, the district court dismissed the complaint against the individual defendants, and at the completion of all the evidence, it dismissed counts 1 and 2 of the complaint against the institutional defendants.*fn1

The present appeal is taken from these two orders of dismissal. Appellants are Josephina Duchesne, as administratrix of the estate of Pauline Perez,*fn2 and the two minor children, Danny and Marisol. Appellees are Jule M. Sugarman, former Commissioner of New York City's Human Resources Administration, Elizabeth Beine, former Director of Child Welfare Services in New York City's Bureau of Child Welfare, Seymour Fass, former Director of New York City's Bureau of Child Welfare, Manhattan Section,*fn3 and the two private child-caring institutions, the New York Foundling Hospital and St. Joseph's Home for Children.*fn4

In reviewing the propriety of the district court's orders of dismissal which directed verdicts for the appellees, several steps of analysis must be performed. First, it is necessary to determine whether the appellants' due process rights have been violated. Second, if there has been a constitutional violation, inquiry must be made as to which, if any, of the appellees may be held liable under § 1983 for money damages. Our review reveals that there has been a due process violation and that the jury should have been permitted to decide whether any of the appellees must answer in damages. Therefore, we reverse and remand for a new trial on the issues of liability and damages.

I. Facts

The salient facts may be summarized as follows.*fn5 On December 16, 1969, Pauline Perez decided that she needed medical attention for emotional problems which had been disturbing her. Before going to Bellevue Hospital, Perez left her two children, Danny, age 7, and Marisol, age 6 months, with a neighbor with whom she had shared babysitting responsibilities. Perez expected that she would receive out-patient care at Bellevue and would return to her children the same day. Instead, she was admitted to the hospital where she remained for the next six days. Meanwhile, the neighbor with whom the children were left contacted the police and informed them that she could not care for the children for more than a night because she was about to give birth to a child of her own. The police relayed this information to a welfare center, which in turn contacted New York City's Bureau of Child Welfare ("B.C.W.").

On December 17, 1969, a B.C.W. representative visited Perez in the hospital and attempted to have her sign a form granting consent to the Bureau to obtain custody. The B.C.W. records indicate that the representative explained to Perez "that she would not lose any rights as mother and that as soon as she came out of the hospital, she could have the children back when she was able to provide proper care."*fn6 Despite these assurances, Perez refused to sign. The B.C.W. employee reported this refusal to his supervisor, caseworker James Princeler. Princeler advised the caseworker that no consent was necessary at that point.*fn7

On that same day, the Bureau assumed custody of the two children; Danny was placed in the St. Joseph's Home for Children and Marisol in the New York Foundling Hospital. The records of the Bureau and the two institutions indicate that the emergency placements were requested by B.C.W. because the children's mother was in the hospital. There is no mention of the absence of parental consent nor of the need for procurement of court authorization. Indeed, the procedures followed in obtaining and retaining custody of the children accorded with the directives of the Inter-Agency Manual of Policies and Procedures, which was issued jointly by the Commissioner and the highest officials of the Bureau of Child Welfare.*fn8 As shall be more fully discussed later, the Manual instructed that children may be separated from their families in emergencies without benefit of parental consent or a court order; no requirement for prompt judicial ratification of such emergency action qualified this mandate.*fn9

On December 22, 1969, Perez was released from Bellevue; she immediately contacted a B.C.W. caseworker and demanded that her children be returned. However, the children were not relinquished. Several days later, Perez voluntarily returned to the hospital where she remained until February 1970. Upon her release at that time, requests for return of her children were made of the Bureau and the two institutions; the requests were again rejected. An explanation for these refusals may be found in St. Joseph's conclusion that Perez was "'sweet,' but 'not mother material.'"*fn10

On January 22, 1970, a Deputy Commissioner authorized St. Joseph's to admit Danny to foster care because of the "mental illness of the person caring for the child."*fn11 A similar authorization for Marisol was received by the Foundling Hospital on March 2, 1970. Thus, the children were no longer in temporary emergency placement, but were to be the subject of planning for long-term, if not necessarily permanent, care.

On April 29, 1970, a psychiatrist who had been treating Ms. Perez recommended that the children be returned to her one at a time. B.C.W. reported the recommendations to the child-caring institutions, but because they objected, the children were not returned.

In succeeding months, Perez repeatedly requested the return of her children; but all of these requests were denied. During this entire time, the children were never able to visit each other. And, in October 1971, the situation reached crisis proportions for Perez when she discovered that Marisol, now two years old, had been transferred to a foster home; no advance notice of this action had been given to her. The mother vehemently complained to various authorities that she had never signed any papers; but her pleas once again fell upon deaf ears.*fn12

The records reveal that at least as of November 10, 1971, B.C.W., St. Joseph's and the Foundling Hospital were all aware that Perez had never signed any consent or commitment papers.*fn13 The three discussed the absence of consent, but decided that they would take no action unless Perez initiated legal proceedings on her own.*fn14 Indeed, the records reveal that "since obtaining Pauline's signature at this point seem[ed] an impossibility, [they] agreed not to attempt it."*fn15 Moreover, the Foundling Hospital's records demonstrate that it informed Perez of her legal right to institute an action if she thought the children should be with her.*fn16

Finally, on February 22, 1972, some 27 months after the family had been separated, Perez filed a petition in the New York Supreme Court seeking a writ of habeas corpus. Although no effort had been made by appellees to seek judicial authorization of either the initial removal or the continued detention of the children for over two years, they now, 10 days after the filing of Perez's habeas action, filed a neglect proceeding in the New York Family Court. This action was consolidated with Perez's habeas petition for a hearing in the Family Court. The court denied the petition for a writ of habeas corpus, and found Perez guilty of neglect. In the Matter of Danny C., Docket No. N704/06 (Family Ct. New York Cnty. Dec. 1, 1972). However, on appeal the Appellate Division reversed; that court found that the initial removal and continued detention of the children were in violation of state law because of the absence of a court order or Perez's written consent. In the Matter of Danny C., 47 App. Div. 2d 160, 365 N.Y.S.2d 535 (1st Dep't 1975). Moreover, the court reversed the Family Court's finding of neglect because Perez had been denied the opportunity to present rebuttal evidence. However, it denied the habeas remedy apparently on the basis of a temporary order of the Family Court directing that the status quo be maintained pending the final adjudication of the neglect proceeding.*fn17

II. Constitutional Deprivation

The threshold inquiry is whether the evidence establishes that appellants have been deprived of a constitutional right.*fn18 They assert that the removal and detention of the children with neither parental consent nor court authorization, and in the face of the mother's repeated requests for their return, deprived them of their right to live together as a family without due process of law. The crux of the claim is that appellees could not constitutionally refuse to return the children to their mother's custody without providing an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965).

The Supreme Court has established the framework for analyzing a due process claim such as that presented here. The initial determination is whether appellants have been deprived of "interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). If such a deprivation has occurred, the remaining question is "the nature of the process that is due. . . ." Morrissey v. Brewer, 408 U.S. 471, 484, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).

A Liberty Interest

It is beyond peradventure that "freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974). The existence of a "private realm of family life which the state cannot enter," Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944), "has its source . . . not in state law, but in intrinsic human rights, as they have been understood in 'this Nation's history and tradition.' Moore v. City of East Cleveland [431 U.S. 494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d 531, 45 U.S.L.W. 4550, 4553 (1977)]," Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S. Ct. 2094, 53 L. Ed. 2d 14, 45 U.S.L.W. 4638, 4645 (1977) (" Organization of Foster Families ") (footnote omitted).

Here we are concerned with the most essential and basic aspect of familial privacy - the right of the family to remain together without the coercive interference of the awesome power of the state. This right to the preservation of family integrity encompasses the reciprocal rights of both parent and children. It is the interest of the parent in the "companionship, care, custody and management of his or her children," Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), and of the children in not being dislocated from the "emotional attachments that derive from the intimacy of daily association," with the parent, Organization of Foster Families, supra, 431 U.S. at 844, 45 U.S.L.W. at 4645.*fn19

This mutual interest in an interdependent relationship has received consistent support in the cases of the Supreme Court.

"The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed 'essential,' Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), 'basic civil rights of man,' Skinner v. Oklahoma, 316 U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942), and 'rights far more precious . . . than property rights,' May v. Anderson, 345 U.S. 528, 533, 97 L. Ed. 1221, 73 S. Ct. 840 (1953). 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944)."

Stanley v. Illinois, supra, 405 U.S. at 651. See also, Armstrong v. Manzo, supra.

While there may be some doubt as to the precise definition of the "family," see, e. g., Organization of Foster Families, supra, 431 U.S. at 842, 45 U.S.L.W. at 4645, there can be no question that the liberty interest in family privacy extends to a mother and her natural offspring as are involved in this case. Nor can there be any question that appellants were deprived of their right to live together as a family by the refusal to return the children to the custody of the mother. Thus, we must determine whether this deprivation of the liberty interest in family privacy was accompanied by adequate process.

B. The Process that is Due

While deprivation of a liberty interest triggers the protection of the fourteenth amendment, the determination of what process is due still remains. The trial court concluded that "the initial custody in December 1969 was clearly proper since the facts show an emergency situation with the mother in the psychiatric ward of Bellevue Hospital and no one to take care of the children." Appendix, at 44. We agree that the evidence establishes that the taking of the children was justified at the outset by an emergency. As such, as a matter of constitutional law, the initial removal of the children without parental consent or a prior court order was permissible. Cf. Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599, 94 L. Ed. 1088, 70 S. Ct. 870 (1950). However, in those "extraordinary situations" where deprivation of a protected interest is permitted without prior process, the constitutional requirements of notice and an opportunity to be heard are not eliminated, but merely postponed. Boddie v. Connecticut, 401 U.S. 371, 379, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971).

It is admitted that appellees did not obtain judicial authorization to retain custody until December 1972, some 36 months after their initial emergency action, and that this authorization was sought only after Perez had instituted a habeas corpus proceeding in February 1972. Moreover, the evidence is clear that this failure to act was in the face of repeated requests by the mother for the return of her children. Yet, both the trial court and appellees argue that this failure to seek prompt judicial ratification of emergency action was not constitutionally defective because the state remedy of habeas corpus was always available to appellants. It is asserted that this remedy provided an opportunity for an adequate hearing. In support of this position, the trial court and appellees rely on this court's per curiam affirmance of then district court Judge Mansfield's opinion in Boone v. Wyman, 295 F. Supp. 1143 (S.D.N.Y.), aff'd, 412 F.2d 857 (2d Cir. 1969), cert. denied, 396 U.S. 1024, 24 L. Ed. 2d 518, 90 S. Ct. 600 (1970). However, there are important distinctions between the circumstances of this case and those involved in Boone - distinctions which mandate the conclusion that the existence of a habeas remedy did not afford these appellants with an opportunity to be heard "at a meaningful time and in a meaningful manner."

Boone v. Wyman involved a challenge to what was then § 383 of the New York Social Services law; the statute provided that once a child was remanded or committed to an authorized agency, the parent was not entitled to custody without the consent of the proper authority or a court order.*fn20 Two separate plaintiffs challenged this provision. The original plaintiff, Boone, was the 17-year-old father of an illegitimate child. The mother of the child, who had custody, voluntarily placed the child in the care of the Commissioner of Social Services of the City of New York pursuant to a written instrument executed by her. "The agreement was entered into by the mother voluntarily and with full knowledge of the nature and legal consequences of the instrument." 295 F. Supp. at 1146. Boone claimed that he was being deprived of his right to custody because the Department of Social Services would not release the child to him upon request.

The intervening plaintiff, Gonzalez, was the 18-year-old unwed mother of a child. She had executed an authorization similar to that signed by the mother of Boone's child. She claimed that her consent was involuntarily induced and that her right to custody was also being denied by the refusal to return her child to her.

Plaintiffs argued that § 383 deprived them of procedural due process by permitting officials to deny natural parents' requests for custody without holding a hearing or instituting judicial proceedings. Judge Mansfield held, and this court affirmed per curiam, that the statute was not unconstitutional because state law furnished a habeas remedy providing for a de novo hearing in which the state had the burden of establishing the parent's unfitness. In the circumstances of that case, it was felt that this habeas remedy provided adequate process.

Initially, it must be noted, that unlike the plaintiffs in Boone, the present appellants do not challenge the constitutionality of any state statute. Rather, they assert that the appellees have violated state law,*fn21 as well as the Constitution. In a footnote to an earlier opinion in this case, this court intimated that while the relevant state law possibly permitted emergency placements without parental consent or a prior court order, it clearly required the official to "' promptly inform the parent . . . and the family court of his action.' (Emphasis supplied). NYSSL § 398, subd. 9." Perez v. Sugarman, 499 F.2d 761, 763-64 n. 3 (2d Cir. 1974). The highest state court to review the case has concurred in this conclusion, finding that the initial removal and the continued detention of the children were in violation of state law "since initially there was no court order obtained and neither did she give her written consent to the removal and detention of her children, nor was a petition timely made to a court as required." In the Matter of Danny C., supra, 47 App. Div. 2d at 163.*fn22 Of course, this apparent violation of state law is not necessarily a basis for a § 1983 claim; there must also be a constitutional deprivation. Rosenberg v. Martin, 478 F.2d 520, 524 (2d Cir.), cert. denied, 414 U.S. 872, 38 L. Ed. 2d 90, 94 S. Ct. 102 (1973); see also, Paul v. Davis, 424 U.S. 693, 699-701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).

The critical distinction,*fn23 and one of constitutional significance, between the present case and Boone v. Wyman is the manner in which custody was initially obtained. In Boone, custody was authorized at the outset by written parental consent; here, there was no parental consent, and, indeed, there was an explicit refusal to sign a consent form. In Boone, the state initially deprived the family of their right to live together only with the approval of a parent. While there may have been later challenges to the consent, the family relationship was not severed solely on the basis of the state's ex parte assessment of the family situation. In the present case, the initial physical removal of the children during an emergency, while constitutionally permissible, was without explicit parental consent. This action and the continued separation of the family by retention of custody was based on a unilateral and untested evaluation of the mother's fitness as a parent. As Justice Stewart has very recently stated:

"If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest, I should have little doubt that the State would have intruded impermissibly on 'the private realm of family life which the state cannot enter.' Prince v. Massachusetts, 321 U.S. 158, 166."

Organization of Foster Families, supra, 431 U.S. at 863, 45 U.S.L.W. at 4650 (Stewart, J. concurring).*fn24

In this situation, the state cannot constitutionally "sit back and wait" for the parent to institute judicial proceedings. It "cannot . . . [adopt] for itself an attitude of 'if you don't like it, sue.'" Kimbrough v. O'Neil, 523 F.2d 1057, 1060 n. 3 (7th Cir. 1975) (Swygert, J., concurring). The burden of initiating judicial review must be shouldered by the government. We deal here with an uneven situation in which the government has a far greater familiarity with the legal procedures available for testing its action. In such a case, the state cannot be allowed to take action depriving individuals of a most basic and essential liberty interest which those uneducated and uninformed in legal intricacies may allow to go unchallenged for a long period of time. Cf. Fuentes v. Shevin, 407 U.S. 67, 83 n.4, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972); Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 385 n. 4 (2d Cir. 1973) (Timbers, J., concurring). Nowhere is the inadequacy of the state's approach more poignantly demonstrated than in the present case where the mother did not obtain legal advice until May 1971*fn25 and did not institute a habeas proceeding until February 1972. Until that time, some 27 months after the initial removal of the children, her rights and those of her children to live together as a family were denied with impunity. Therefore, we must conclude that the failure of appellees to obtain judicial ratification of their decision to maintain custody of the children, despite the numerous and vociferous requests of Ms. Perez for their return, constituted a violation of due process.*fn26

III. Appellees' Liability

Title 42 U.S.C. § 1983 establishes a federal cause of action for damages against state and local officials who have caused individuals to suffer a constitutional deprivation,*fn27 and was designed to protect them against a "misuse of power . . . made possible only because the wrongdoer is clothed with the authority of state law. . . ." United States v. Classic, 313 U.S. 299, 326, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941). Having determined that appellants have suffered from such constitutional deprivations, the remaining question is which, if any, of the appellees may be required to compensate them in money damages. The trial court directed verdicts for the municipal officials after plaintiffs' case and for the institutions after all the evidence was submitted. The test to be applied when a motion to direct a verdict has been granted is as follows:

"The motion [should] be granted only if (1) there is a complete absence of probative evidence to support a verdict for the non-movant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable and fair minded men in the exercise of impartial judgment would not arrive at a verdict against him. 5 J. Moore, Federal Practice, para. 50; 2[1] (2d ed.)"

Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2d Cir.), cert. denied, 400 U.S. 833, 27 L. Ed. 2d 65, 91 S. Ct. 67 (1970). For the reasons discussed below, neither of these tests has been satisfied here; it was error to direct verdicts for either set of appellees.

A. Institutional Appellees

The trial court directed verdicts for the New York Foundling Hospital and the St. Joseph's Home for Children because it concluded that there had been no constitutional infraction. As such, it "never reach[ed] the question of whether the defendants here are entitled to the qualified immunity referred to in Wood v. Strickland, [420 U.S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975)]." Appendix, at 44. Since we have concluded that there was a violation of appellants' due process rights, we must consider what, if any, defenses are available to these institutional appellees.*fn28

Although not precisely delineated, the institutions assert two interrelated defenses. First, they argue that they cannot be liable because they received authorizations to admit the children from municipal officials. In essence, the contention is that while they are agents of the city authorities for purposes of accepting custody, they are not agents for purposes of law enforcement. For this reason, they claim a right to rely on the city authorities to insure that their custody was lawful. Secondly, they contend that they are entitled to the "qualified immunity/good faith" defense articulated in Wood v. Strickland, supra.

Both these defenses present questions which cannot be resolved as a matter of law; therefore they must be tendered to the jury on remand.*fn29 The evidence establishes that each of the institutions became aware that their custody was based neither on parental consent nor on a court order. As such, it is for the jury to determine whether they did in fact rely on the city authorities and whether they acted in good faith as that defense has been defined by the Supreme Court in Wood v. Strickland.*fn30 Cf. Shifrin v. Wilson, 412 F. Supp. 1282, 1295-96 (D.D.C. 1976).

B. Individual Appellees

The directed verdicts in favor of the second group of appellees present a troublesome problem. Each individual appellee was at the relevant time a supervisory-level municipal welfare officer; Sugarman was Commissioner of the City's Human Resources Administration; Beine was the Director of Child Welfare Services in New York City's Bureau of Child Welfare; and Fass was Director of the City's Bureau of Child Welfare, Manhattan Section. Each of these appellees has been sued individually, as well as in his or her official capacity. Compare Monell v. Department of Social Services, 532 F.2d 259 (2d Cir. 1976), rev'd, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1977).

The doctrine of respondeat superior is unavailable as a basis for imposing liability under § 1983; there must be some showing of personal responsibility. Arroyo v. Schaefer, 548 F.2d 47, 51 (2d Cir. 1977); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974); Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973). The trial court concluded that appellants failed to establish the necessary personal responsibility because there was no showing that any of these appellees personally knew of appellants nor personally took any action with respect to them.

However, the evidence reveals that various portions of the Inter-Agency Manual of Policies and Procedures issued jointly by the Commissioner and the highest officials of the Bureau of Child Welfare contained directives that sanctioned the type of action which resulted in the constitutional deprivations. In the section of the Manual dealing with "intake" procedures, there is a discussion of the need for the consent of parents or guardians for placement. A portion of that discussion reads:

"The consent of a parent who is in a hospital for the mentally ill, an institution for mentally defectives or in a prison is not required. It is, however, the general policy of BCW to try to obtain the consent of such parent whenever it is considered desirable on the basis of the case circumstances and the opinion of the director of the hospital, institution or prison."

Exhibit 2, Section 2, at 6. Similarly, a provision dealing with emergency placements states:

"Whenever it appears that a child is in immediate need of placement (e. g. because he is actually homeless or his well-being would be endangered if continued in his present situation) he may be placed by BCW before completion of the required investigation. In such cases, the placement may be made although the person to give consent is not immediately available."

Exhibit 2, Section 5, at 14.

These portions of the Manual properly directed that children may be separated from their families in emergencies without parental consent or a court order. However, they did not contain the qualification, apparently required by state law, and surely required by the Constitution, that all emergency removals must be promptly ratified by court order. That the Manual reflected the thinking of the relevant policy makers is revealed by their own testimony. Appellee Beine testified

"that to her knowledge emergency placements which occur in the absence of a court order or a written consent can continue indefinitely until BCW deems that the emergency no longer exists. That BCW is authorized to continue a placement so long as it judges that placement is in the best interest of the child, regardless of whether there is a court order or written consent.

". . . .

"That the Manual does not set forth specific follow-up procedures to be taken where custody of a child is assumed without either written parental consent or a court order, although it was BCW policy and practice to obtain parental consent whenever possible or seek a court authorization when appropriate. BCW assumed custody of the children where there was a written parental consent, or where there was a court order authorizing placement or where, in the absence of either written consent or court order, it was BCW's judgment that the welfare and best interests of the child required that custody be assumed."

Statement of Evidence, Testimony of Elizabeth Beine, paras. 15, 17. Accord, id., Testimony of Seymour Fass, paras. 3, 4, 6, 8.

In Rizzo v. Goode, 423 U.S. 362, 370-71, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976), the Supreme Court emphasized that § 1983 permits the imposition of liability "only for conduct which' subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution [and laws]." In the circumstances of that case, the Court held that no liability under § 1983 could be imposed on supervisory personnel because

"as the facts developed, there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners -- express or otherwise -- showing their authorization or approval of such misconduct."

Id. at 371. It was the absence of this "causal connection" which proved fatal to plaintiff's action in Rizzo ; the mere failure to adequately supervise was not enough.

Unlike Rizzo, in the present case, a jury could find the individual appellees liable, not on the theory that these supervisory officials may be held responsible for the acts of agents which were negligent or contrary to instructions, but rather on the theory that it was the appellees own conduct which resulted in the constitutional violations. It is not necessary for § 1983 liability that the appellees directed any particular action with respect to these specific individuals, only that they affirmatively promoted a policy which sanctioned the type of action which caused the violations. In short this is not a case of indifference, that is, a failure to act in the face of misconduct by subordinates, but is rather a case of affirmative policy-making which may have caused the misconduct. Cf. Allee v. Medrano, 416 U.S. 802, 40 L. Ed. 2d 566, 94 S. Ct. 2191 (1974); Hague v. CIO, 307 U.S. 496, 83 L. Ed. 1423, 59 S. Ct. 954 (1939).

Title 42 U.S.C. § 1983 does not permit even supervisory personnel to perform their duties in a way that causes constitutional deprivations without requiring them to answer in money damages.

What we have said only requires that this theory of liability be permitted to go to the jury.*fn31 The jury must determine whether the Manual directives of policy and procedure, which provided for the taking of custody of children in emergencies without making the necessary qualification for prompt judicial ratification, were the proximate cause of the constitutional deprivations suffered by appellants. While it may be difficult for appellants to convince the jury that these appellees "played a significant role in causing" the situation which resulted in detention of the children, the evidence is sufficient for such a finding. Cf. Kletschka v. Driver, 411 F.2d 436, 447 (2d Cir. 1969). If it finds this "causal connection," the jury must then decide if these appellees are entitled to the "qualified immunity/good faith" defense. The "qualified immunity/good faith" defense contains both subjective and objective components. Wood v. Strickland, 420 U.S. 308, 321, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975). It is not enough that appellees may have acted "sincerely and with a belief that [they were] doing right," for "an act violating . . . constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law . . . than by the presence of actual malice." Id. Thus, appellees "must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of [their] charges." Id. at 322. The necessity of satisfying both elements of the good faith defense is reflected in the test established by the Supreme Court:

"The relevant question for the jury is whether [appellees] 'knew or reasonably should have known that the action [they] took within [their] sphere of official responsibility would violate the constitutional rights of [the appellants], or if [they] took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to [the appellants].' [ Wood v. Strickland, 420 U.S. at 322]."

O'Connor v. Donaldson, 422 U.S. 563, 577, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975).

Therefore, with respect to each set of appellees the question is not only whether they acted with good intentions, but also whether they had "reasonable grounds for the belief formed at the time and in light of all the circumstances" that their conduct was constitutional. Scheuer v. Rhodes, 416 U.S. 232, 247-48, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). For the institutional appellees the focus must be on their "good faith" vel non in refusing to return the children to their mother, despite her repeated demands for their return. With respect to the individual appellees the inquiry must center on their "good faith" in promoting the policies and procedures contained in the Manual.*fn32 Both the causation question and the issue of good faith present questions of fact which are peculiarly within the jury's province.

IV. Conclusion

The family has been described quite properly as "perhaps the most fundamental social institution of our society." Trimble v. Gordon, 430 U.S. 762, 769, 97 S. Ct. 1459, 52 L. Ed. 2d 31, 45 U.S.L.W. 4395, 4397 (1977). Ms. Perez and her two children were deprived of their right to live together as a family without due process of law. The Civil Rights Act, 42 U.S.C. § 1983, establishes a cause of action against any person who, acting under color of state law, causes an individual to suffer from a constitutional deprivation. We remand for a new trial in which the jury must determine which, if any, of the appellees are liable under § 1983 for the constitutional deprivations suffered by the appellants. If liability is established, the extent of damages*fn33 must also be fixed by the jury.

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