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Cornejo v. Bell

January 4, 2010

SALLY CORNEJO, INDIVIDUALLY AND ON BEHALF OF HER INFANT CHILD KEVIN SALAS, PLAINTIFF-APPELLANT,
v.
WILLIAM BELL, INDIVIDUALLY AND AS COMMISSIONER, KATHLEEN CERRITO, INDIVIDUALLY AND AS CASEWORKER, JANICE HOGGS, INDIVIDUALLY AND AS SUPERVISOR, JOYCE DE NICHOLSON, INDIVIDUALLY AND AS MANAGER, EUGENE WEIXEL, INDIVIDUALLY AND AS CASEWORKER, RAMON VARGAS, INDIVIDUALLY AND AS SUPERVISOR, MAUREEN FLEMING, INDIVIDUALLY AND AS DEPUTY DIRECTOR AND CITY OF NEW YORK, FREDDA MONN, INDIVIDUALLY AND AS SUPERVISING ATTORNEY, JODI KAPLAN, INDIVIDUALLY AND AS SUPERVISING ATTORNEY, DAWN SCHWARTZ, INDIVIDUALLY AND AS ATTORNEY SUSAN SCHENKEL SAVITT, AND THE CITY OF NEW YORK, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Appeal from the May 20, 2008 judgment of the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge), granting summary judgment to defendants, in an action involving wrongful child removal, on the grounds of absolute immunity and qualified immunity under federal and state law. Although we disagree with the district court's conclusion that the caseworker defendants are entitled to absolute immunity under federal law, we agree that they are entitled to qualified immunity and that the rest of the district court's determinations are correct.

AFFIRMED.

The opinion of the court was delivered by: Rakoff, District Judge

Argued: October 7, 2009

Before:MINER and CABRANES, Circuit Judges, and RAKOFF, District Judge.*fn1

For centuries, Anglo-American law has protected public officials against claims for damages arising from actions taken in the course of duty. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).

"As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability." Id.

In the case of legislators, judges, and certain executive officials such as prosecutors, the protection usually takes the form of absolute immunity from liability for damages. Id. at 807. In the case of most executive employees, however, the protection takes the form of "qualified immunity," i.e., immunity from liability if the employee was acting in subjective and objective good faith. Id. at 807, 815. The instant case chiefly concerns what kind of immunity attaches to actions taken by two categories of New York employees --- caseworkers and lawyers ---involved in the inherently difficult determination of whether to seek removal of a child from the custody of the child's parents on the ground of child abuse.

BACKGROUND

Plaintiff-appellant Sally Cornejo commenced these consolidated actions on behalf of herself and her infant child, Kevin Salas, alleging violations of federal and state law arising from actions taken by the employees of the New York City Administration for Children's Services ("ACS") in connection with the investigation into the death of Cornejo's other infant son, Kenny, and the resulting Family Court proceedings. The defendants-appellees, in addition to the City of New York (named only derivatively), are current or former ACS caseworkers and supervisors (collectively, the "caseworker defendants"), namely, caseworkers Kathleen Cerrito and Eugene Weixel, their supervisors Janice Hogg and Ramon Vargas, Hogg's manager Joyce De Nicholson, De Nicholson's director Maureen Fleming, and the then-acting ACS Commissioner William Bell; and current or former lawyers in ACS's Division of Legal Services (collectively, the "lawyer defendants"), namely, attorneys Dawn Schwartz and Susan Schenkel Savitt, and their supervisors Fredda Monn and Jodi Kaplan.

The pertinent facts, largely undisputed and, where disputed, taken most favorably to the plaintiff, are as follows: On October 30, 2002, plaintiff Cornejo returned from work to find her fiancé, Rothman Salas, holding their five-month-old son Kenny, who was not breathing. Kenny was subsequently brought to Schneider Children's Hospital ("Hospital") at 11:30 PM. On the afternoon of October 31, 2002, a nonphysician Hospital employee reported (via telephone call) to the New York State Central Registry of Child Abuse and Maltreatment (the "SCR") that Kenny had suffered a broken rib, diffuse cerebral edema, and a heart attack as a result of being violently shaken by his father. The Oral Report Transmittal ("ORT") documenting the call stated that Cornejo was not present during the shaking incident. A second ORT made at approximately 5:30 PM stated that the rib fracture was several weeks old but that the parents had "failed to provide a plausible explanation" for how Kenny's rib was fractured. Upon receiving the two ORTs from SCR, ACS assigned caseworker Cerrito to investigate. Cerrito spoke by telephone with Dr. Debra Esernio-Jenssen, a pediatric specialist in charge of the Hospital's Child Protection Consulting Team, who reported that

Kenny's immediate brain and heart injuries were most likely caused by Shaken Baby Syndrome. She also expressed her belief that Cornejo had "no part" in the immediate injuries, which "would happen immediately after violent shaking." Dr. EsernioJenssen further opined, however, that the broken rib could have been the result of a prior shaking incident. Cerrito reported this back to Hogg, who concluded that not only Kenny but also Kevin, the couple's other, eighteen-month-old son, would have to be removed from the home pending further proceedings. Cornejo was then informed that both her children would be removed from her custody until the ACS investigation was completed. Cerrito arranged for Kevin to be brought to the Hospital, where he was examined and then placed in temporary kinship foster care on an ex parte emergency basis. The medical examination of Kevin showed him to be healthy, with no signs of abuse. Kenny remained at the Hospital, where he died on November 7. Meanwhile, on November 1, ACS instructed its attorneys to file petitions in Family Court accusing both parents of child abuse of both children. Kaplan filed the petitions, which were signed by Cerrito, that day. The petitions notably failed to differentiate between the two parents, Cornejo and Salas, stating that both parents had either "inflict[ed] or allow[ed] to be inflicted . . . physical injury" or "create[d] or allow[ed] to be created a substantial risk of physical injury" to the children. The petitions included the Hospital diagnosis of Shaken Baby Syndrome as the cause of Kenny's heart and brain injuries; as to the fractured rib, the petition alleged that the parents "failed to provide an explanation consistent with a non-abusive or non- intentional trauma." The Family Court remanded the children to ACS, and, as noted, Kenny died on November 7.

Despite an intervening attempt by Cornejo to regain custody of Kevin, this was where matters stood until, on November 14, a city medical examiner informed ACS attorney Schwartz of her preliminary findings: that she "could not say" that Kenny was a victim of Shaken Baby Syndrome and that the "fractured rib" was actually a congenital rib malformation. As a result, the very next day, ACS itself sought, by Order To Show Cause, to parole Kevin to his mother. Nevertheless, the Family Court judge, after hearing testimony from Dr. Esernio-Jenssen in which she maintained her conclusion that Kenny had been shaken, declined to return Kevin to his mother's care. The judge also denied subsequent applications for parole or withdrawal of the petition against Cornejo, citing ongoing disparities in the medical evidence as to the cause of Kenny's death.

In January 2003, the medical examiner issued a final autopsy report that concluded that the actual cause of Kenny's death was a "rare and natural heart defect" and that reaffirmed the medical examiner's previous finding that there was no rib fracture but only a congenital abnormality. The ...


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