to CWA. There is also no dispute that CWA received this report on December 22, 1988 and assigned responsibility for its investigation to CWA caseworker Harold Damas. CWA placed a hold on James' discharge from the hospital on the basis of that report and Damas' conversation with Dr. Grillo on December 22, 1988.
The report indisputably stated that James' parents were suspects in James' abuse. (It is also indisputable that the report contained some statements later determined to be erroneous.) The report had been made by a hospital staff member, at the request of the treating physician, Dr. Giridharan, who was legally obligated to report suspected abuse. Such a report of an emergency, filed by an identified, disinterested person with cause to know of abuse and a legal obligation to report it, confirmed by the treating resident physician, constitutes objectively reasonable evidence of an emergency to child protective personnel. Further, Damas' conversation with Dr. Grillo confirmed the report in essential elements.
The analogy of Mr. and Mrs. Dietz' situation to the facts in Hurlman that plaintiffs would have the court draw is simply unconvincing. There, state troopers sought to establish that the statements of a fellow officer that his daughter was at risk of sexual abuse from her grandfather created an objectively reasonable belief that an emergency existed. In Hurlman, there was an obvious private interest on the part of the state actor reporting the abuse, there was no actual objective injury, and there was no inquiry into the circumstances. Here, the report of abuse was by a disinterested third party, there was objective evidence of physical abuse, and the inquiry at the hospital confirmed the basic outlines of the report.
Until Damas met with Mr. and Mrs. Dietz on the evening of Friday, December 23, 1988, the errors in the 2221 were not known to CWA. (Damas had attempted to meet with Mr. and Mrs. Dietz on December 22, 1988, the day CWA received the 2221 report, by going to their home. He left a copy of the W-555C form at their home, notifying them that the report had been filed and giving them his phone number. City Ex. K.) Indeed, before CWA knew that some of the information in the 2221 was erroneous, that is, until Damas met with the Dietzes and Salmos on the evening of December 23, 1988, CWA would be seen to have been derelict in its duty to protect James had it not prevented his discharge to his parents. When Damas became aware of the overstatement of the case against Mr. and Mrs. Dietz in the 2221 report, he consented to the proposal made by Mr. Salmo to discharge James to his grandparents, the Salmos. The discharge permitted Mr. and Mrs. Dietz to have contact with James under the supervision of Mrs. Dietz' parents. This decision greatly limited the infringement on Mr. and Mrs. Dietz' custody of James, as it never prevented their contact with him, either in the hospital or in a family setting.
However, although Damas learned that the case against Mr. and Mrs. Dietz in the 2221 report had been overstated, the new information he now had did not exonerate the Dietzes. From his meeting with Mr. and Mrs. Dietz, Damas learned the time parameters of Mr. and Mrs. Dietz' and Mrs. McGurn's contact with James. These parameters made determining the time of the shaking essential. Moreover, contrary to plaintiffs' assertion, nothing in Damas' notes or testimony indicates that Mr. Dietz had been cleared of suspicion in this time period. Damas' case notes suggest that Mrs. Dietz' conduct while Mr. Dietz was speaking, at the meeting on December 23, 1988, when she "got up for a moment and went to the kitchen and stayed there for a few seconds, running her fingers through her hair and returned to living room," might well have raised some suspicions of Mr. Dietz in his mind. CWA's understanding of the time frame in which the abuse could have occurred throughout the period until it was narrowed by Dr. Giridharan in March 1989 was still long enough to include Mr. Dietz as a suspect. Thus there is no need to determine whether CWA should have attempted to remove Mrs. Dietz from their home in order to minimize interference with Mr. Dietz' custody of his son.
Thus, the initial assertion of custody by CWA was fully warranted by objectively reasonable notice of a child abuse emergency.
The Second Circuit has held, in factual circumstances remarkably similar to those before this court, that a child protective agency's assumption of total custody of a child was objectively reasonable and thus did not violate the parents' constitutional rights. Van Emrik v. Chemung County Dep't of Social Serv., 911 F.2d 863 (2d Cir. 1990). There, as here, an infant was admitted to a hospital with serious physical injury suggestive of child abuse, the time frame of abuse implicated both a babysitter and the parents, none of whom had any history or indicative psycho-social factors suggestive of abusive behavior, and, ultimately, no conclusive determination was made as to who, if anyone, abused the child. In Van Emrik, the court cautioned against "faulting the manner in which the temporary removal was effected." 911 F.2d at 866. "The issue is whether it was objectively reasonable for the defendants to make the decision they made, and no rational jury could find that it was not." Id.
In Van Emrik, the Second Circuit affirmed the district court's dismissal of a suit against the county and, with one exception not applicable here, held that the actions taken by the social workers and agency "show no impairment of a constitutional right." Id. It thus affirmed the entitlement of the individual defendants to qualified immunity. As noted at the outset, in Van Emrik, the Second Circuit explicitly acknowledged the "difficult alternatives" faced by child protection caseworkers "in the context of suspected child abuse." Id. at 866.
A recent case in this district has also considered the due process issues concerned in seizure of a child under the perception that a child abuse emergency exists. In Tenenbaum v. Williams, 862 F. Supp. 962, 971-72 (E.D. N.Y. 1994); mot. for rearg. denied, 907 F. Supp. 606 (E.D.N.Y. 1995), Judge Hurley held that, as a matter of law, there was no due process violation in the emergency removal of a child from the custody of its parents on the basis of a report by the child's teacher that the child had indicated that she had been sexually abused by her father. He concluded, however, that a probable cause requirement would be "unlikely to frustrate the state's attempts to investigate child abuse." 862 F. Supp. at 976. In the case he decided, however, probable cause with regard to seizure of the child and probable cause as to the identity of the alleged abuser were co-extensive. It is not clear to this court that a probable cause requirement, that is, a requirement of probable cause both with regard to the parents' (or other custodial persons') involvement and to the existence of injuries constituting a child abuse emergency, would not, contrary to Judge Hurley's observation, at times, "frustrate the state's attempts to investigate child abuse." In the Van Emrik case, as in the case before the court, where the fact of the abuse was known, but it was not possible to eliminate a parent or parents from suspicion, the evidence specifically implicating an individual parent may not have risen to the level of probable cause. When the original report of abuse comes from a hospital setting it is not unlikely that the hospital or child protective agency will initially lack information sufficient to establish probable cause against any one individual. The need to protect an abused child may require restriction of parental custody temporarily, while an investigation is conducted and, even thereafter, if its findings are unable to eliminate parents (or other custodial persons) from suspicion.
Despite plaintiffs' attempt to equate seizure of a child in child abuse proceedings to criminal arrest, with the concomitant obligation to establish probable cause within the parameters required for arrests
with regard to the restrictions placed on the parents, this position simply does not find support in the case law. Pltf. Brf. dated November 19, 1993 at 51. Family Court proceedings are "civil in nature and a finding of abuse or neglect need only be supported by a preponderance of the evidence." In the Matter of Nicole V., 71 N.Y.2d 112, 117 524 N.Y.S.2d 19, 518 N.E.2d 914 (1987). Although in Nicole V., the New York State Court of Appeals was referring specifically to sexual abuse of children in its discussion of policy, it would appear even more applicable to WSIS which generally involves babies incapable of testifying: "Such abuse is difficult to detect because the acts are predominantly nonviolent and usually occur in secret rendering the child the only witness. Moreover, once abuse is uncovered it is difficult to fix blame, not only because of the lack of evidence but also because of the reluctance or inability of victims to testify." Id.
New York State has, by statute, established a res ipsa loquitur approach to certain types of child abuse, denominating certain types of injuries as prima facie evidence of abuse or neglect. Under N.Y. Jud.L. (Family Court Act) § 1046(a)(II):
Proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent or other person legally responsible.