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CHI CHAO YUAN v. RIVERA
March 25, 1999
CHI CHAO YUAN, INDIVIDUALLY AND ON BEHALF OF MARC LUI AND DERICK LUI, INFANTS, PLAINTIFF,
ROSE RIVERA, INDIVIDUALLY AND AS CASEWORKER, CHILD WELFARE ADMINISTRATION, MARIA CONCEPCION, INDIVIDUALLY AND AS SUPERVISOR, CHILD WELFARE ADMINISTRATION, BARBARA DITMAN, INDIVIDUALLY AND AS MANAGER, CHILD WELFARE ADMINISTRATION, MARVA HAMMONS, INDIVIDUALLY AND AS COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, KATHRYN CROFT, INDIVIDUALLY AND AS DEPUTY COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, AND CITY OF NEW YORK, DEFENDANTS.
The opinion of the court was delivered by: Francis, United States Magistrate Judge.
The parties consented to refer the case to me for all
proceedings under 28 U.S.C. § 636(c). The defendants now move for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. For the reasons stated below, the motion is
granted as to the plaintiffs' Fourth Amendment, equal protection,
and retaliation claims; the individual claims against defendants
Marva Hammons and Kathryn Croft; the failure to train claim
against Ms. Hammons, Ms. Croft, and the City of New York; and the
state law claims of interference with custody and unlawful
imprisonment. The motion is denied as to the remaining claims.
In June of 1994, Ms. Chi lived in New York City with her
husband, Hong Wei Lui, and their two sons, Marc, who was three
years old, and Derick, who was approximately six weeks old. Ms.
Chi provided the main financial support for the family. On June
28, 1994, while Ms. Chi was away on a business trip, Derick was
taken by his father to the St. Luke's-Roosevelt Hospital Center
where he was admitted and examined by medical personnel.
(Defendants' Local Civil Rule 56.1 Statement ("Def. 56.1
Statement") ¶ 1; Plaintiff's Statement Pursuant to Local Rule
56.1 ("Pl. 56.1 Statement") ¶ 1). The following day, Dr. Anail
Danavis filed an Initial Oral Report stating that Derick had
sustained "an injury to the left inner eye, bruises on the face,
fractured clavicle, and a fractured left tibia." (Def. 56.1
Statement ¶¶ 2-3; Pl. 56.1 Statement ¶ 1). In light of Mr. Lui's
explanation that he dropped Derick twice in the bathtub, Dr.
Danavis noted that the "injuries are suspicious." (Def. 56.1
Statement ¶ 3; Pl. 56.1 Statement ¶ 1; see State Central
Register, attached as Exh. J to Declaration of Carolyn Kubitschek
dated October 8, 1998 ("Kubitschek Decl.")). Hospital authorities
reported the case to the New York State Central Registry,*fn1
which in turn notified the New York City Child Welfare Agency
("CWA"). On June 29, CWA assigned caseworker Rose Rivera to the
case, to be overseen by Maria Concepcion, a supervisor, and
Barbara Ditman, a manager.
On June 30, Ms. Rivera visited the hospital and met with Mr.
Lui, Ms. Chi (who had returned to New York upon hearing that
Derick was injured), and Dr. Elizabeth Watkins, one of the
physicians treating Derick. (Deposition of Rose Rivera dated
February 6, 1995, attached as Exh. A to Kubitschek Decl. ("First
Rivera Dep."), at 10). Ms. Chi then traveled to Washington, D.C.
on business and remained there from July 2 to July 7. (Def. 56.1
Statement ¶ 12; Pl. 56.1 Statement ¶ 6). On July 5, 1994, at 3:00
p.m., Derick was medically ready for discharge; however, Ms.
Rivera had him held at the hospital. (Def. 56.1 Statement ¶ 8;
Pl. 56.1 Statement ¶ 2). The following day, Derick's doctors
ordered additional x-rays for a suspected cerebral hematoma. On
July 7 Ms. Rivera filed a petition in Family Court against Ms.
Chi and Mr. Lui. (Def. Rule 56.1 Statement ¶ 10; Pl. 56.1
Statement ¶ 4). The petition alleged generally that Ms. Chi and
Mr. Lui had abused and neglected their son Derick. (Petition
Child Abuse Case dated July 7, 1994, attached as Exh. B to
Declaration of Chi Chao Yuan dated January 15, 1997 ("Chi
Decl.")). Specifically, the petition described Derick's
condition, recounted Mr. Lui's story, and stated that the
injuries were inconsistent with Mr. Lui's explanation. The
petition then stated that "[d]ue to injuries to Derick, the
sibling MARC [sic] is at risk of being abused." No particular
acts by Ms. Chi were alleged.
On the day the petition was filed, Family Court Judge Leah Ruth
Marks held a preliminary hearing at which Ms. Chi and her husband
were present. Based on the allegations in the petition, Judge
Marks remanded both Derick and his brother Marc to CWA's custody.
(Transcript of Family Court Proceedings, July 7, 1995 at 4,
attached as Exh. E to Kubitschek Decl.). On July 8, Ms. Chi and
her husband petitioned under § 1028 of the Family Court Act for
their children's return. (Declaration of Barbara Ditman dated
February 4, 1997 ("Ditman Decl."), Exh. D). Ms. Rivera testified
at the hearing. (Transcript of Family Court Proceedings, July 8,
1994, attached as Exh. C to Kubitschek Decl.). Judge Marks denied
the petition, and Marc and Derick (who was discharged from the
hospital that day) were placed in foster care. Ms. Chi moved to
dismiss the petition for facial insufficiency on July 19 (Ditman
Decl., Exh. E), but the motion was denied. (Ditman Decl., Exh.
On July 26, Dr. Watkins wrote a letter to Ms. Ditman expanding
and correcting her findings. (Def. 56.1 Statement ¶ 4; Pl. 56.1
Statement ¶ 1; Letter of Elizabeth Watkins dated July 26, 1994,
attached as Exh. A to Declaration of Michele Lerner dated August
28, 1998 ("Lerner Decl.")). Derick, she wrote, was admitted "with
a fractured left clavicle (collar-bone), and oblique fracture
through the mid-diaphysis (mid shaft) of the left tibia (medial
long bone of the lower leg)"; follow-up x-rays showed "new bone
formation about the distal left humerus (elbow end of the long
bone of the upper arm) with an associated buckle handle fracture
of the distal left humerus, and bruising on the right and left
sides of his face." (Def. 56.1 Statement ¶ 5; Pl. 56.1 Statement
¶ 1). Dr. Watkins observed that the bruising on the right side of
Derick's face appeared smaller and older than the bruises on the
left cheek. (Def. 56.1 Statement ¶ 6; Pl. 56.1 Statement ¶ 1).
She noted that a neuroradiologist who reviewed the MRI concluded
that what was initially interpreted to be a cerebral hematoma
caused by an earlier injury may have been only a manifestation of
slow blood flow in the area. (Lerner Decl., Exh. A). However, Dr.
Watkins concluded that the injuries were "characteristic of
abusive fractures," and that the bruises and fractures occurred
on separate occasions. (Def. Rule 56.1 Statement ¶ 7; Pl. 56.1
Statement ¶ 1; Lerner Decl., Exh. A).
On August 28, CWA filed a report stating that "Mr. Lui admitted
he dropped Derick twice in the bathtub" and "mother neglected
children when left while child Derick was still in the hospital
and was not available when child became ready to [be]
discharged." (Def. 56.1 Statement ¶ 28, Pl. 56.1 Statement ¶ 17).
This information was entered in the State Central Registry.
On September 9, CWA amended the Family Court petition to
include allegations specific to Ms. Chi: "The respondent mother
placed the children at risk in that after being informed of the
injuries to the child Derick she left the home and told the
caseworker that the father would care for the children."
(Chi.Decl., Exh. C). On September 19, Ms. Chi moved for custody
of Marc and Derick and asserted that Mr. Lui no longer lived in
their home. (Def. 56.1 Statement ¶ 34; Pl. 56.1 Statement ¶ 22).
The following day the matter was further adjourned until
September 26, when the case was again put over for Ms. Rivera to
file a report to the court. (Ditman Decl., Exh. D). On October 3,
with the defendants' consent, the court paroled the children to
Ms. Chi's care under
CWA's supervision. (Def. 56.1 Statement ¶ 38; Pl. 56.1 Statement
Trial began on March 3, 1995 and continued in May. (Ditman
Decl., Exh. D). Judge Marks issued a decision on August 31, 1995
finding that Mr. Lui abused Derick and that "Marc was in danger
of being abused as a result of his father's actions prior to the
petition's filing." (Lerner Decl., Exh. L at 3). However, Judge
Marks dismissed the petition against Ms. Chi, finding "no
evidence that Marc was ever harmed by the acts or omissions of
either parent prior to [the time Derick was injured]" and "no
evidence that Mr. Lui should have been considered an improper
caretaker at the time he was left to care for the children in
June 1994." (Lerner Decl., Exh. L at 2). Accordingly, the judge
concluded: "There is no proof on which to base any finding of
abuse or neglect by Chi Chao Yuan. . . . That she did not foresee
what would happen in her absence is regrettable, but she cannot
be blamed for that." (Lerner Decl., Exh. L at 3).
The plaintiff filed a notice of claim with the New York City
Law Department on November 29, 1995. (Lerner Decl., Exh. N). She
then filed the present action on August 30, 1996, setting forth
seven causes of action. In the first three, the plaintiff claims
that the individual defendants Rose Rivera, Barbara Ditman, and
Maria Concepcion (1) removed Marc and Derick from her and
detained them without probable cause, without due process of law,
and based on legal standards different from those applied to
fathers; and unlawfully interfered with Ms. Chi's liberty
interest in the care and custody of Marc and Derick, in violation
of the Fourth, Fifth, and Fourteenth Amendments to the United
States Constitution (Complaint ¶¶ 46-47); (2) removed and
detained her children without probable cause and based on
constitutionally inadequate investigation of the child abuse
charges (Complaint ¶ 56); (3) initiated abuse and neglect
proceedings maliciously and without probable cause in violation
of her Fourth Amendment right to be free of unlawful searches and
seizures (Complaint ¶¶ 62-63); and (4) retaliated against Ms. Chi
for exercising her First Amendment right to criticize the conduct
of child abuse investigations. (Complaint ¶¶ 62-63).
The plaintiff alleges that the individual caseworkers acted
pursuant to policies maintained by the City of New York, Marva
Hammons (the Commissioner of the Department of Social Services of
the City of New York ("DSS")), and Kathryn Croft (the Deputy
Commissioner of DSS and the Director of CWA). (Complaint ¶¶
44-45, 55, 62). In the alternative, the plaintiff charges that
these defendants failed to adopt adequate policies regarding the
removal and detention of children from their parents, including
policies for the investigation of child abuse charges and the
filing of child protective proceedings. (Complaint ¶¶ 49-52,
57-58, 64-65). The plaintiff also alleges that the City of New
York, Ms. Hammons, and Ms. Croft provided grossly inadequate and
unprofessional training to their employees. (Complaint ¶ 59).
The fourth and fifth causes of action are state law tort claims
for interference with custody and unlawful imprisonment.
(Complaint ¶¶ 67-72). The seventh cause of action charges
defendants with gross deviation from accepted professional
standards. (Complaint ¶¶ 82-83).
In the sixth cause of action Ms. Chi alleges that Ms. Rivera,
Ms. Conception, and Ms. Ditman violated her rights to privacy,
liberty, and reputation, and impeded her ability to obtain
employment by informing the State Central Registry that she was
an abusive parent. (Complaint ¶ 74). She further claims that the
City of New York, Ms. Croft, and Ms. Hammons had a policy of
labeling parents as abusive based upon improper, secret standards
even though the parents' conduct did not amount to abuse or
maltreatment under New York Law. (Complaint ¶¶ 75-79).
On January 13, 1998, the Honorable Leonard Bernikow, to whom
the case was then assigned, dismissed the sixth cause of action
against all defendants. However, Judge Bernikow ruled that the
plaintiffs could relitigate the Family Court's finding that Mr.
Lui abused Derick and rejected the defendants' argument that that
finding conclusively established probable cause to remove the
children. Chi v. Rivera, No. 96 Civ. 6628, 1998 WL 63404
(S.D.N.Y. Feb. 17, 1998). The defendants now move for summary
A. Standard for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
The moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact, Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142
(1970), and may discharge this burden by demonstrating to the
court that there is an absence of evidence to support the
nonmoving party's case on which that party would have the burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party then
has the burden of coming forward with "specific facts showing
that there is a genuine issue for trial," Fed. R.Civ.P. 56(e), by
"a showing sufficient to establish the existence of [every]
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex, 477 U.S. at
322, 106 S.Ct. 2548.
The court "must resolve all ambiguities and draw all reasonable
inferences in favor of the party defending against the motion."
Eastway Construction Corp. v. City of New York, 762 F.2d 243,
249 (2d Cir. 1985) (citations omitted); see also Adickes, 398
U.S. at 158-59, 90 S.Ct. 1598. But the court must inquire whether
"there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party," Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986) (citation omitted), and grant summary judgment where the
non-movant's evidence is conclusory, speculative, or not
significantly probative. Id. at 249-50, 106 S.Ct. 2505. In sum,
if the court determines that "the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no `genuine issue for trial.'" Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First
National Bank of Arizona v. Cities Service Co., 391 U.S. 253,
288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
B. Claims under 42 U.S.C. § 1983
The plaintiff seeks damages pursuant to 42 U.S.C. § 1983
against the City of New York and individual City employees.
Section 1983 provides a civil claim for damages against any
person who, acting under color of state law, deprives another of
a right, privilege, or immunity secured by the Constitution or
laws of the United States. See 42 U.S.C. § 1983; Adickes, 398
U.S. at 150, 90 S.Ct. 1598; Sykes v. James, 13 F.3d 515, 519
(2d Cir. 1993). Because "section 1983 `is not itself a source of
substantive rights,' but merely provides `a method for
vindicating federal rights elsewhere conferred[,]' [t]he first
step in any such claim is to identify the specific constitutional
right allegedly infringed." Albright v. Oliver, 510 U.S. 266,
271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433
(1979)); see Sykes, 13 F.3d at 519. To prevail, the plaintiffs
must establish that the person depriving them of these rights
acted under color of state law. See 42 U.S.C. § 1983, Gomez v.
Toledo, 446 U.S. 635, 639, 100
S.Ct. 1920, 64 L.Ed.2d 572 (1980); Sykes, 13 F.3d at 519.
The plaintiff alleges that the defendants violated her and her
children's Fourteenth Amendment due process rights, their Fourth
Amendment rights to be free from unlawful seizure and malicious
prosecution, their equal protection rights, and their First
Amendment rights. To recover against the City employees in their
individual capacities, the plaintiff must also overcome the
affirmative defense of qualified immunity.
The plaintiff's procedural and substantive due process claims
derive from the liberty interest implicated whenever the state
intrudes upon "the most essential and basic aspect of familial
privacy — 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); see
also Joyner v. Dumpson, 712 F.2d 770, 777-78 (2d Cir. 1983). "It
is the interest of the parent in the `companionship, care,
custody and management of his or her children,' and of the
children in not being dislocated from the `emotional attachments
that derive from the intimacy of daily association,' with the
parent [.]" Duchesne, 566 F.2d at 825 (internal citations
omitted); see also Stanley v. Illinois, 405 U.S. 645, 652, 92
S.Ct. 1208, 31 L.Ed.2d 551 (1972); Gottlieb v. County of
Orange, 84 F.3d 511, 518 (2d Cir. 1996) ("parents have a
fundamental, constitutionally protected liberty interest in the
custody of their children"); Kia P. v. McIntyre, 2 F. Supp.2d 281,
289 (E.D.N.Y. 1998); Defore v. Premore, 863 F. Supp. 91, 94
(N.D.N.Y. 1994), aff'd, 86 F.3d 48 (2d Cir. 1996).
1. Procedural Due Process
To establish a claim for violation of procedural due process,
the plaintiff must prove that the defendants deprived her or her
children of a liberty interest without following constitutionally
adequate procedures. See Board of Regents v. Roth,
408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Morrissey v.
Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
Parents, before being deprived of the custody of their children,
are generally entitled to a predeprivation hearing. Robison v.
Via, 821 F.2d 913, 921 (2d Cir. 1987). However, it is well
established that in an "emergency," officials may deprive a
parent of custody "without parental consent or a prior court
order." Id. (quoting Duchesne, 566 F.2d at 826 (emphasis in
original)); see also Gottlieb, 84 F.3d at 517; Cecere v. City
of New York, 967 F.2d 826, 830 (2d Cir. 1992) ("temporary
assertions of custodial authority in the face of a reasonably
perceived emergency do not violate due process"). An "emergency"
is a situation where "the child is immediately threatened with
harm, or where the child is left bereft of care and supervision,
or where there is evidence of serious ongoing abuse and the
officials have reason to fear imminent recurrence[.]" Hurlman v.
Rice, 927 F.2d 74, 80 (2d Cir. 1991), (internal citations
omitted); see also Robison, 821 F.2d at 922. There must be an
objectively reasonable basis for the belief that an emergency
exists. Gottlieb, 84 F.3d at 520. "Where `there [is] no room
for any inference that there was not an ...