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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 ...

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