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September 30, 1994

MARC TENENBAUM and MARY TENENBAUM, individually and on behalf of SARAH TENENBAUM, an infant, Plaintiffs,
NAT WILLIAMS, individually and as caseworker, Child Welfare Administration, VERONICA JAMES, individually and as caseworker, Child Welfare Administration, DOBY FLOWERS, individually, MARVA LIVINGSTON HAMMONS, * as Commissioner of Social Services of the City of New York, BROOKE TRENT, individually, CLAUDE MEYERS,* as Deputy Commissioner of Social Services of the City of New York, CITY OF NEW YORK, and NEW YORK CITY BOARD OF EDUCATION, Defendants.

The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56(b); plaintiffs cross-move for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(a).

 Defendants' motion is denied in part and granted in part; plaintiffs' cross-motion is denied.


 At P.S. 230, Sarah often fell asleep and on occasion would cry in the morning in class, according to her teacher, Mary Murphy. (Murphy Dep. at 17-18.) At first, Sarah did not speak to Murphy. Over time, however, Sarah grew comfortable with her, and would show Murphy pictures and speak one- or two-word sentences to her. (Murphy Dep. at 21.)

 On January 4, 1990 and January 5, 1990, defendants allege that Sarah communicated to Murphy in words and gestures that her father sexually abused her. On one occasion when Sarah began crying, Murphy asked her if anyone was hurting her and identified a series of people in her life to which she "shook her head no." However, when her father's name was mentioned in the litany of individuals, Sarah's eyes filled "up in tears and she shook her head, yes, and she started to really cry." (Murphy Dep. at 23.) Sarah is said to have pointed to the groin area of one of the dolls in the play area of her classroom when asked by Murphy where her father hurt her. (Murphy Dep. at 24-26.) Defendants also allege, inter alia, that Sarah drew a picture of two figures and said to Murphy that one of the figures was her father and that he "kneeled" and "hurt" her, and that she was the other figure, and then she stopped talking. (Murphy Dep. at 27.)

 As required by Sections 413 and 415 of the New York Social Services Law, Murphy reported what Sarah had done and said to her superiors at P.S. 230. An official at the school, Susan Raiten, in turn reported the matter to the New York State Department of Social Services' ("the State DSS's") Central Register of Child Abuse and Maltreatment by telephone in the morning of Friday, January 5, 1990. (Raiten Dep. at 13.) An operator at the State DSS recorded the call on a DSS Form 2221 ("2221 Report"). The 2221 Report stated, "Sarah is speech and language delayed. Sarah is unable to stay awake during the day. Child often naps off and on all day. Child is nervous and withdrawn. Child is afraid of father. Father hurts her vaginal area at night."

 As required by state law, the State DSS forwarded the 2221 Report to defendant Nat Williams, a supervisor in the child protective unit of the New York City Child Welfare Administration ("the CWA") Brooklyn field office. Williams received the report on the day it was made, Friday, January 5, 1990, and on the same day assigned the case to defendant Veronica James, a newly-hired caseworker under his supervision. (Williams Dep. at 37.)

 Williams instructed James to contact Murphy to verify the allegations contained in the 2221 Report. He also told James to visit the Tenenbaums' home. James attempted to contact Murphy later on Friday, but she had already left for the day. James then visited the Tenenbaum home with a co-worker named Thomas O'Connell.

 When the caseworkers arrived at the Tenenbaum home on Friday evening, they told the Tenenbaums that they were there to investigate a report that Sarah had been absent from school and was developmentally delayed. (James Dep. at 11.) They did not inform the Tenenbaums of their suspicion of sexual abuse. (Mary Tenenbaum Decl. at P 13.) James and O'Connell interviewed the Tenenbaums at length (Mary Tenenbaum Decl. at P 15), and the Tenenbaums informed the caseworkers that Sarah was being treated at Maimonides Hospital for her speech and developmental problems. The Tenenbaums gave James the names of the pediatricians caring for Sarah and her younger brother, Aaron, and signed releases for their medical records. (James Dep. at 16.) They also informed the caseworkers that they had an ongoing dispute with officials at P.S. 230 over plans for Sarah's education, and believed that the report of Sarah's absence and developmental problems was made to retaliate for their refusal to go along with the school's plans. (Id. at 11; Mary Tenenbaum Decl. at P 14.) The Tenenbaums partially undressed their children so that James and O'Connell could inspect them for any bruises or marks on their chests, backs or extremities. The caseworkers found no signs of maltreatment or abuse. (James Dep. at 14-15; O'Connell Dep. at 18.) No effort was made to inspect either child's genital area.

 No further action on the Tenenbaum case was taken over the weekend. On Monday, January 8, 1990, James visited P.S. 230 to interview Murphy and Sarah. Murphy related the evidence of abuse she had gathered from Sarah on January 4, 1990 and January 5, 1990. When Murphy, with James present, asked Sarah whether her father touched her near her vagina and hurt her, however, Sarah shook her head "no." (James Dep. at 22-25.) In fact, she responded to all of the questions asked of her that day by Murphy by shaking her head "no," including the question "does your mother bathe you." Id. Murphy also reported to James that a gym teacher had noticed a red mark on Sarah's thigh several weeks earlier. (Murphy Dep. at 36.) The Tenenbaums allege that the gym teacher could have seen the mark only by undressing Sarah because she always wore opaque tights to school. (Mary Tenenbaum Decl. at P 21.)

 After leaving the school, James reported what she had learned to Williams. He instructed her to go to P.S. 230, to effect an emergency removal of Sarah pursuant to Social Services Law § 417 and Family Court Act § 1024, and to take her to Coney Island Hospital to be examined by doctors for possible sexual abuse. (James Dep. at 28.)

 James and Williams made no effort to seek judicial authorization prior to removing Sarah, although Williams testified that a court order can be obtained within one day. (Williams Dep. at 128.)

 In the afternoon of Tuesday, January 9, 1990, James visited P.S. 230 and gave the school officials a form which indicated that she was taking Sarah into protective custody in accordance with state law. (Oberferst Dep. at 39.) James then took Sarah to Coney Island Hospital.

 At the hospital, a pediatrician and a gynecologist conducted an examination of Sarah. The doctors found no evidence of sexual abuse.

 While James and Sarah were at Coney Island Hospital, Williams contacted Mary Tenenbaum by phone to advise her that the CWA had removed her daughter from school. Mary Tenenbaum contacted her husband and went to meet with Williams at his office. Marc Tenenbaum arrived later. The Tenenbaums assert that Williams spoke very rudely to them. He allegedly warned them that they would not get Sarah back, that Mary Tenenbaum was an unfit mother, and that Marc Tenenbaum was a sex abuser. (Mary Tenenbaum Decl. at PP 28-29.)

 At the conclusion of Sarah's examination at Coney Island Hospital, James took her to the CWA's Brooklyn field office, where Sarah met her parents at about 7:30 to 8:30 p.m. (Mary Tenenbaum Decl. at P 32.)

 Later that evening, Williams told the Tenenbaums that the CWA would not file charges and that they could take Sarah home because the medical examination did not find evidence that the child had been sexually abused. (Mary Tenenbaum Dep. at 241.)

 Ultimately, Williams marked the case "unfounded," (Williams Dep. at 100), and no attempt to remove Saran from the Tenenbaum home was made.


 I. Standard for Summary Judgment

 A party should be granted summary judgment only when its moving papers show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing the absence of relevant facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). In addition, "not only must there be no genuine issue as to evidentiary facts, but there must also be no controversy regarding the inferences to be drawn from them." Id.

 II. Elements of Claims Under Section 1983

 The Tenenbaums seek damages pursuant to 42 U.S.C. § 1983. To recover, they must show (1) "that some person has deprived [them] of a federal right" and (2) "that the person who has deprived [them] of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). To recover against employees of the City of New York in their individual capacities, plaintiffs must also be prepared to resist the asserted affirmative defenses of qualified immunity. Id.

 Qualified Immunity

 The individual defendants James, Williams, Flowers and Trent will be entitled to immunity if they can show that (1) "it was not clear at the time of the official acts that the interest asserted by the plaintiff was protected by a federal statute or the Constitution," or (2) "it was not clear at the time of the acts at issue that an exception did not permit those acts," or (3) "even if the contours of the plaintiffs' federal rights and the official's permissible actions were clearly delineated at the time of the acts complained of, the defendant[s] may [still] enjoy qualified immunity if it was objectively reasonable for [them] to believe that [their] acts did not violate those rights." Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987). As to this third prong, courts have explained that a defendant is entitled to summary judgment if the defendant "'adduce[s] sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant []' to believe that he was acting in a fashion that did not clearly violate an established federally protected right." 821 F.2d at 921 (quoting Halperin v. Kissinger, 257 U.S. App. D.C. 35, 807 F.2d 180, 189 (D.C. Cir. 1986)).

 Supervisor Liability

 Plaintiffs assert individual claims against Doby Flowers and Brooke Trent, the former Commissioner and former Deputy Commissioner, respectively, of the Department of Social Services of the City of New York. As individuals, Flowers and Trent can be liable only if they were personally responsible for violations of plaintiffs' rights, by, inter alia, promulgating unconstitutional policies or plans, or otherwise authorizing or approving the challenged misconduct. See Rizzo v. Goode, 423 U.S. 362, 371, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976) (superior can be liable for constitutional violation resulting from policy or order); Duchesne v. Sugarman, 566 F.2d 817, 831 (2d Cir. 1977) (superiors could be liable for policy-making); Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989) (supervisor liable when he or she has actual or constructive notice of an unconstituticnal practice and demonstrates "gross negligence or deliberate indifference" by failing to act).

 Municipal Liability

 Plaintiffs also assert claims against the City of New York, Marva Livingston Hammons and Claude Meyers in their official capacities, as the Commissioner, and Deputy Commissioner of New York City Social Services respectively, and against the New York City Board of Education. The claims against Hammons and Meyers, as well as the claims against James and Williams in their official capacities as caseworkers, are the equivalent of claims against New York City. Hafer v. Melo, 502 U.S. 21, , 112 S. Ct. 358, 361-62, 116 L. Ed. 2d 301 (1991). The Tenenbaums could recover against New York City or the Board of Education based on their authorization of unconstitutional acts, approval of unconstitutional customs, or failure to train. See Monell v. Department of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) (city can be liable for unconstitutional policy promulgated by its officers); City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989) (complaint asserting failure to train as a result of deliberate indifference to constitutional rights states a claim for relief). While the city and its agencies cannot be held liable based on respondeat superior, Monell, 436 U.S. at 694 n.58, they are not permitted to assert the defense of qualified immunity that is available to the individual defendants. Smith v. Wade, 461 U.S. 30, 32-33, 75 L. Ed. 2d 632, 103 S. Ct. 1625 (1983).

 III. Due Process Claims

 A. Substantive Due Process

 The Tenenbaums first argue that defendants' removal of their daughter from school to be examined for abuse violated their Fourteenth Amendment right to substantive due process.

 Plaintiffs' substantive due process claim derives from "the right of the family to remain together without the coercive interference of the awesome power of the state." Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). This right is fundamental. Joyner v. Dumpson, 712 F.2d 770, 778 (2d Cir. 1983).

 Although fundamental, a constitutional violation of the right to family integrity occurs only if defendants' actions "significantly interfere" with plaintiffs' family integrity. Zablocki v. Redhail, 434 U.S. 374, 386, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978). For example, in Joyner, the Second Circuit found that a statute which required that parents wishing to obtain state-subsidized residential care for their children temporarily transfer custody to the state did not significantly interfere with the parents' right to family integrity. 712 F.2d at 778.

 Similarly, in Fitzgerald v. Williams, 787 F.2d 403, 408 (8th Cir. 1986), the Eighth Circuit held that no substantive due process violation occurred where caseworkers had arranged for a psychologist to examine a child who was allegedly abused. See also Doe "A" v. Special School Dist., 637 F. Supp. 1138, 1146 (E.D. Mo. 1986) (detention by bus driver for several hours did not infringe right to family integrity).

 As in Joyner, Fitzgerald and Doe "A", defendants' deprivation of the Tenenbaums of their child for a single afternoon for a medical examination did not significantly infringe their fundamental right to live together without interference from the state.

 All defendants are therefore entitled to summary judgment on this claim.

 B. Procedural Due Process

 1. Removal of the Child from School

 The Tenenbaums also allege that defendants deprived them of their right to procedural due process. In Robison v. Via, the Second Circuit held that

it [is] clearly established that a parent's interest in the custody of his or her children [is] a constitutionally protected "liberty" of which he or she [can] not be deprived without due process, which [] generally require[s] a predeprivation hearing. However, it [is] equally well established that officials may temporarily deprive a parent of custody in "emergency" circumstances "without parental consent or a prior court order."

 821 F.2d 913, 921 (2d Cir. 1987) (emphasis in original) (citations omitted).

 In the present case, James and Williams relied on Section 1024 of the New York Family Court Act in removing Sarah from school on January 9, 1990. That Section provides that a child may be removed, absent parental consent or a court order, if there is "reasonable cause to believe that the child is in such circumstances or condition that his continuing in said place of residence or in the care and custody of the parent . . . presents an imminent danger to the child's life or health," and there is insufficient time to obtain prior judicial ...

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