again had only to show that there was "some credible evidence." Id. Persons denied employment because of their inclusion in the Register also had the right to a post deprivation hearing at which the state had the burden of proving the allegations by a "fair preponderance of the evidence." Id. After noting that 75% of those who sought to have their name expunged from the Register were successful, the Second Circuit held that the risk of erroneous deprivation was so great as to deprive Valmonte of her liberty interest in employment in the child care field. See id. at 1002-4.
Valmonte is not relevant in this context. The purpose of requiring certain health care workers to make reports of suspected abuse, and setting the standard for inclusion as "some credible evidence" is to effectively further the state's "strong interest" in protecting children from immediate harm. See Valmonte, 18 F.3d at 1003. It cannot ensure accuracy. Like warrantless arrests, which may be made on probable cause in exigent circumstances (and often turn out to be erroneous) child abuse investigations require a functional, reasonable balance between competing concerns.
The state's interest in the well being of children justifies only an objectively reasonable, temporary removal, not a permanent removal. Valmonte indicates that this justification cannot be extended to effect a permanent denial of the right to employment in the child care field without any consideration of the accuracy of the fact finding process.
The New York Court of Appeals recently illustrated the fact that functional considerations determine the appropriate degree of accuracy required at each stage in the abuse reporting system. In Lee TT. v. Dowling, 87 N.Y.2d 699, 642 N.Y.S.2d 181, 664 N.E.2d 1243 (N.Y. 1996), the court, following Valmonte, held that due process required that a report of child abuse must be substantiated by a "fair preponderance of the evidence" before being released "as a screening device for future employment." Id. at 712. Significantly, the court also held that "during the investigative process the information may be retained on the strength of some credible evidence supporting it and released to . . . health care and law enforcement agencies under the terms and conditions listed in [N.Y. Social Services Law § ] 422(4)(A)." Id. Thus, where the investigation is at an early stage, and the deprivation is a temporary one pending an adversarial hearing, it is not improper for the defendants to rely on a report that contains some credible evidence. Thus, plaintiffs's statistical argument about error rates is irrelevant to this case.
In any event, plaintiffs' argument that a report of abuse is not always reliable is not relevant where, as here, a health care professional files an undisputed report of severe injury to a child. This alone would constitute probable cause -- as would the statement of an identified witness to an armed robbery. Moreover, CWA action was not taken solely on the basis of the report of abuse: critically, the severity of James's actual injuries was confirmed in discussions with Dr. Grillo and the Dietzes themselves. Finally, the report's errors were identified through discussion with the Dietzes. There is no dispute that James Dietz was severely injured as the result of child abuse. Nor is there any dispute that the report identifying his parents as possible abusers was filed at the direction of Dr. Giridharan. Plaintiffs do not dispute that Dr. Giridharan refused to narrow the time frame in a way that would eliminate them from suspicion when questioned by the police detective and the CWA caseworker who were investigating the report. As noted in the opinion, the injury Dr. Giridharan reported is considered prima facie evidence of abuse under New York law. See 932 F. Supp. at 447. CWA's actions with respect to the Dietzes were objectively reasonable. The petition that CWA filed in Family Court was based on probable cause and did not violate plaintiffs' constitutional rights.
The delay in providing an adversarial hearing was justified and thus did not violate constitutional due process standards. Plaintiffs lack standing to sue for harms CWA may have done to others. See Allen v. Wright, 468 U.S. 737, 760-1, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984).
Whether or not the delay was a violation of state law is an open question of state law that this court has declined to consider. Plaintiffs have failed to raise any but conclusory allegations that the repetition of the errors from the initial abuse report in the petition resulted from malice rather than inadvertence when a substitute caseworker was used in Mr. Damas' absence.
3. Other Legal Arguments Raised in Plaintiffs' Reply Brief
Plaintiffs take issue, see Pls.' Reply Br. at 15-16, with the opinion's analysis of Sandin v. Conner, U.S. , 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), noting that it was limited by the Supreme Court to state prison regulations. See 932 F. Supp. at 453. Plaintiffs choose to ignore that the discussion responded to their attempt to extend pre-Sandin decisions, also based on state prison regulations, such as Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980) and Wright v. Smith, 21 F.3d 496 (2d Cir. 1994), to establish the existence of liberty interests cognizable under 42 U.S.C. § 1983 that derive from state law rather than directly from the United States Constitution. Plaintiffs instead assert that the liberty interest they advocate is "living together as a family." Pls.' Reply Br. at 16. However, plaintiffs offer no reason that the Sandin limitation does not apply to their effort to extend the same rationale. In fact, Sandin is quite relevant, as it makes the extension of law for which plaintiffs have argued even less compelling. Sandin also undercuts plaintiffs' efforts to establish a 42 U.S.C. § 1983 violation flowing from an alleged violation of New York State law and regulation.
However, assuming (without deciding) that Sandin is not applicable, plaintiffs' argument must also fail.
If Sandin is not applicable, then plaintiffs' claim is analyzed under Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). See Watson v. City of New York, 92 F.3d 31, 37 (2d Cir. 1996) (discussing Hewitt analysis in light of Sandin). Under Hewitt, the relevant inquiry is whether the state established an interest through "the repeated use of explicitly mandatory language." Hewitt, 459 U.S. at 472. While the language in § 1026 of the Family Court Act is mandatory in that it requires a hearing to be held, plaintiffs have not shown that the delay in this case falls outside the latitude the statute grants. As noted in the opinion, there was no constitutional violation here.
See 932 F. Supp. at 448-52.
Although the precise nature of the liberty interest plaintiffs assert ("living together as a family") is unclear, in part because they do not cite any cases, it is possible that plaintiffs are suggesting that state law might implicate substantive due process concerns. "Living together as a family" suggests such an interest, and the cases plaintiffs earlier relied upon, such as Vitek, actually construe substantive liberty interests that exist "irrespective of state regulation." Sandin v. Conner, U.S. , 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2297-8 n.4 (1995). "The substantive component of the due process clause 'bar[s] certain government actions regardless of the fairness of the procedures used to implement them . . . [and thereby] serves to prevent governmental power from being 'used for purposes of oppression."" Callahan v. Lancaster-Lebanon Intermediate Unit 13, 880 F. Supp. 319, 328 (E.D. Pa. 1994) (quoting Daniels v. Williams, 474 U.S. 327, 331-32, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986) (internal citations omitted)). There is no question that the liberty interest plaintiffs assert is one that has repeatedly been affirmed by the Supreme Court, but it is not without limits. See Lehr v. Robertson, 463 U.S. 248, 256-8, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983) (affording constitutional protection to parent-child relationship in "appropriate cases"); Hodge v. Jones, 31 F.3d 157, 163-4 (4th Cir. 1994) ("The maxim of familial privacy is neither absolute nor unqualified, and may be outweighed by a legitimate governmental interest.") (citations omitted) (holding that state's maintenance of "unsubstantiated" abuse report did not violate family liberty interest), cert. denied, U.S. , 130 L. Ed. 2d 496, 115 S. Ct. 581 (1994); Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993) ("The right to family integrity clearly does not include a constitutional right to be free from child abuse investigations."); Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (infringing on parental child custody liberty interest is permissible in emergency circumstances); cf. Marisol A. v. Giuliani, 929 F. Supp. 662, 676-77 (S.D.N.Y. 1996) (finding no substantive due process claim for right to associate with family members, regardless of statutory mandate).
Here, plaintiffs assert this liberty interest in an abstract fashion by stating it as an interest in "living together as a family." However, precisely because the dimensions of this abstract interest are unclear, the Supreme Court has required that a plaintiff alleging the infringement of an abstract liberty interest must do so with particularity. "'If the test of 'clearly established law' were to be applied at this [abstract] level of generality, it would bear no relationship to the 'objective legal reasonableness' that is the touchstone of [ Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)].'" Frazier v. Bailey, 957 F.2d 920, 930 (1st Cir. 1992) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). As the Fourth Circuit noted,
To expect Defendants to resolve what reasonable jurists have long debated -- namely the precise strictures of the penumbral right to familial privacy, cast in the sweeping language of the Supreme Court cases . . . especially in the face of a legitimate state interest such as the effective detection and prevention of child abuse -- is to impose burdens and expectations well beyond their reasonable capacities.