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GOTTLIEB v. COUNTY OF ORANGE

December 15, 1994

ANDREW GOTTLIEB AND JEAN GOTTLIEB, INDIVIDUALLY AND AS THE NATURAL PARENTS OF INFANTS DAWN GOTTLIEB AND LEE GOTTLIEB, Plaintiffs, against THE COUNTY OF ORANGE, THE ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, ESTHER COPPOLA IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY AS AN EMPLOYEE OF THE COUNTY OF ORANGE AND THE ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, LINDA E. DOUTHART IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY AS A SUPERVISORY EMPLOYEE OF THE COUNTY OF ORANGE AND THE ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendants.


The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This civil rights action brought under 42 USC 1983 implicates the tension between familial privacy and the protection of children from sexual abuse. The dispute arises from a direction to an allegedly abusive father to leave his home where he had a 5-year old girl and a 4-year old son, or face removal of his daughter; the issue is whether the investigation leading to the direction was fair and adequate.

 Defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs have cross moved for partial summary judgment against all defendants.

 Plaintiffs' motion for summary judgment is denied. Defendants' motion for summary judgment is granted as to all claims against the individual defendants in their individual capacities, which are accordingly dismissed. *fn1"

 Defendants' motion is denied as to the County of Orange and the Orange County Department of Social Services.

 II

 The basic facts are uncontroverted. On January 24, 1990 a source claiming anonymity telephoned the New York State Department of Social Services and stated that the father "pulls down his pants and underwear and dances around the living room in front of the children." The source asserted that this had occurred more than one time and that the mother was present and laughed.

 The report was referred for investigation to the Orange County Child Protective Services. Though a County caseworker attempted to speak to the daughter and attempted to make a home visit, neither attempt was successful.

 On January 29, 1990, the source made another complaint alleging that "Father wakes up [his daughter] at night and gets into bed with child. Father touches [her] breasts." In making this second report of abuse, the source no longer chose to remain anonymous but requested confidentiality. The source was recontacted and made further allegations that the father slept with his daughter and hugged her tight.

 The questions put to the source focused on the substantive allegations of the source, without background inquiries to evaluate the source's reliability, or whether the source may have harbored any malice toward the plaintiffs.

 After an interview with the family's son which produced no evidence of abuse, a County caseworker interviewed the daughter for 45 minutes to one hour. A school nurse was present for most of the interview with the daughter, but not for what the caseworker calls the "rapport-building" portion of the interview. *fn2" The caseworker first asked the daughter questions about her father's pants falling down, to which the daughter giggled.

 The daughter then asked the caseworker how she knew of this incident since it was an "in house secret". The caseworker responded that she knew all in house secrets and that it was okay for the daughter to tell her such secrets. The interview then led to such questions as "has anyone touched you here?" while pointing to private parts. The daughter answered "yes." When asked by the caseworker who it was that touched her, the daughter identified her father. In addition, when asked "who knows about ...


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