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Southerland v. Woo

United States District Court, E.D. New York

September 9, 2014

SONNY B. SOUTHERLAND, SR., et al., Plaintiffs,
TIMOTHY WOO, Defendant

As Amended September 10, 2014.

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Sonny B. Southerland, Sr., Plaintiff, Pro se, Brooklyn, N.Y. USA.

For Venus S., Sonny B. S. Jr., Nathaniel S., Kiam F., Elizabeth F., Plaintiffs: Corey Scott Stark, LEAD ATTORNEY, Law Offices of Michael G. O'Neill, New York, N.Y. USA; Michael G. O'Neill, LEAD ATTORNEY, New York, N.Y. USA; Aaron N Solomon, The Law Office of Michael G. O'Neill, New York, N.Y. USA.

For Emmanuel F., Plaintiff: Corey Scott Stark, LEAD ATTORNEY, Law Offices of Michael G. O'Neill, New York, N.Y. USA; Michael G. O'Neill, LEAD ATTORNEY, New York, N.Y. USA.

For Mr. Timothy Woo, Individually & As ACS Caseworker, Defendant: Carolyn Elizabeth Kruk, LEAD ATTORNEY, NYC Law Department, General Litigation Division, New York, N.Y. USA; Janice Casey Silverberg, LEAD ATTORNEY, Andrew James Rauchberg, Mark Galen Toews, New York City Law Department, New York, N.Y. USA; Martin John Bowe, The City of New York, New York, N.Y. USA.

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Brian M. Cogan, United States District Judge.

This is an action under 42 U.S.C. § 1983 brought by a father and his now-grown children for damages against Timothy Woo, a former caseworker for the New York City Administration for Children's Services (" ACS" ). Plaintiffs alleged essentially two claims stemming from their removal from the family home in 1997: (1) Woo made false statements or omitted crucial information in an affidavit in order to obtain a Family Court order allowing entry into the family home (the " Entry Order" ), thus resulting in a violation of plaintiffs' rights under the Fourth Amendment; and (2) he then, without court approval, improperly removed the children and placed them in ACS custody, in violation of their right to be free from an unreasonable seizure under the Fourth Amendment and their father's right to due process under the Fourteenth Amendment. After subsequent Family Court hearings, they were placed in foster care, where they remained until they reached the age of majority.

Woo defended the case on the following bases: (1) any misstatements or omissions in his affidavit in support of the Entry Order were unintentional or immaterial; (2) there were emergency circumstances justifying removal of the children without a court order; (3) even if there were not emergency circumstances, he is protected by qualified immunity; (4) the plaintiff children are judicially estopped from maintaining this action; and (5) because the Family Court continued their removal after a hearing, there were sufficient grounds as a matter of law for Woo to remove the children, akin to a post-arrest conviction under Cameron v. Fogarty, 806 F.2d 380 (2d Cir. 1989).

This case has been ongoing for approximately 15 years. It has gone to the Second Circuit twice from decisions granting Woo dismissal or summary judgment, and each appeal has resulted in a remand to the district court. See Southerland v. City of New York, 680 F.3d 127 (2d Cir.), rehearing en banc den., 681 F.3d 122 (2d Cir. 2012) (" Southerland I" ); Southerland v. Giuliani, 4 F.App'x 33 (2d Cir. 2001). In the more recent Southerland I, the Second Circuit held that summary judgment was inappropriate because there

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were several disputed facts that were relevant in determining whether defendant was entitled to qualified immunity.

On remand and reassignment to me, an initial trial resulted in a deadlocked jury and, therefore, a mistrial. A second trial resulted in a plaintiffs' verdict of $75,000 for each of the children and $10,000 for the father, the jury finding in their favor on both of their two claims. In addition, pursuant to the Mandate of the Second Circuit in Southerland I, I submitted, and the jury answered, special interrogatories relating to the issue of qualified immunity.

Before me now is Woo's motion for judgment as a matter of law. He first contends that the jury's answers to the interrogatories entitle him to qualified immunity. Alternatively, he reprises his claims of judicial estoppel and reliance on Cameron.

As to qualified immunity, I agree with Woo that any misstatements or omissions in the affidavit in support of the Entry Order were both immaterial and, at worst, negligent; the Family Court would have issued the Entry Order even with the content that plaintiffs say should have been there. However, I disagree that there were even arguable emergency circumstances here that warranted immediate seizure of the children, and thus Woo does not have qualified immunity for the seizure. Based on the jury's answers to the special interrogatories, and the undisputed fact that the children had lived with their father in the apartment for years without any serious adverse impact, there was no reason to believe that immediate harm would ensue had Woo taken the one or two days to apply for a Family Court Order.

At earlier stages of the case, I rejected Woo's claims of judicial estoppel and reliance on Cameron, and I adhere to those rulings for the reasons set forth below.


I. Introduction

On May 29, 1997, an Oral Transmittal Report originating from a public school came to the Brooklyn field office of ACS, indicating that on May 12, 1997, a child by the name of Ciara Manning had swallowed a can of paint, and that her father Sonny Southerland, Sr. (" Southerland, Sr." ) had not taken her to seek medical attention. The report described Ciara as " emotionally unstable," and noted that Southerland, Sr. was " unable to control or supervise" her and that he " fails to follow through with mental health referrals." The report indicated that Ciara Manning and her father were living at 10 Amboy Street in Brooklyn, New York, but that Ciara " may be staying out of the home in an improper environment."

Woo was assigned to the Ciara Manning case. During the course of his investigation, Woo, unable to access Southerland, Sr.'s apartment to conduct a home visit, applied for an order of entry from the Kings County Family Court. However, Woo made some misstatements and omitted some information in his application, including not advising the court that Ciara was known to be a runaway, and identifying Ciara's half siblings from her mother, rather than Southerland, Sr.'s children, as the children residing in his home. The Family Court granted Woo's request for the Entry Order.

On June 9, 1997, when Woo executed the Entry Order and visited the Southerland home, he removed Sonny Southerland Jr., Venus Southerland, Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix (" the plaintiff children" or

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" the Southerland children" )[1] from the apartment without a court order. Shortly thereafter, the matter came on for hearing before the Family Court, which confirmed and extended the removal. In 1999, plaintiffs filed a complaint against Woo, alleging that he had violated their constitutional rights in seeking an order of entry and removing the plaintiff children.

II. The Trial

A. Plaintiffs' Case

The plaintiff children first called Madeline Duran, who was the Deputy Director of the Brooklyn field office of ACS in 1997. She testified as to ACS policy and practice, including actions taken during an ACS investigation. When a complaint comes to ACS, Duran testified that " ACS [is] required to assess the primary caretaker's home" in order " to gather information from anyone that has anything to do with the children to assess the allegations and their home living arrangement, their behavioral issues." The home assessment would help the caseworker to evaluate the safety and well-being of all the children living in the home, and not just the child named on the report. Even if the parent told the caseworker that the subject child was not in their home, Duran stated that a home assessment was still necessary.

Duran noted that it is " very rare" for ACS to remove children without a court order, and that this procedure is considered " a measure of last resort" -- meaning " that the children would be removed only when all efforts to remediate problems leading to removal have failed and removal is the only way to ensure the welfare of the children." Duran stated that in order to remove children without a court order, there had to be an " imminent or immediate risk" " to the safety of th[e] children." She noted that there were other options that a caseworker should take before resorting to removal of a child. For example, if there was insufficient food in the house, Duran stated that the caseworker would be expected to take money out-of-pocket to provide for food for the day or go back to the field office to procure funds for the following day until something could be done to address the lack of food at the home. If the caseworker found a lamp on the floor without a shade, she expected the caseworker to " [e]ngage in a conversation with the parent to move, remove, the lamp and put it in a safe place." Duran stated that generally speaking, if a caseworker had concerns about a parent's home, she would expect the caseworker " to engage the parent in conversation as to how they can provide a way to make it safe." She also noted that a Family Court order authorizing removal could usually be obtained the same day or the next day if the circumstances warranted it.

The plaintiff children then called Southerland, Sr., who testified as to the events preceding the removal, as well as the removal and its aftermath. According to Southerland, Sr., Ciara Manning ran away from home and " was at various addresses" during the time of ACS's investigation of the paint drinking incident. Southerland, Sr. had first become aware of Ciara's drinking paint after he received a phone call from her school. He testified that he " went up to the school immediately" and met with several people, including Ciara's teacher, guidance counselor and principal. They informed Southerland, Sr. that Ciara had " told them that she intends to kill herself if she was allowed to go home." The school told Southerland, Sr. that " they wanted to ensure that [Ciara] would receive ongoing mental health services." Southerland, Sr. testified that he told the

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school that he could not take any steps on behalf of Ciara because " she wasn't under [his] control."

Southerland, Sr. testified that he was aware of the report sent to ACS, and that he never refused to allow Woo to do an inspection of his apartment. When he met Woo in the hallway of his apartment building while he was taking his children to school, he told Woo that he did not have the time to meet with Woo right then, but asked Woo to set up an appointment, which Woo never did. Southerland, Sr. also testified that Woo never offered any services to his family.

As to the events of June 9, 1997, Southerland, Sr. testified that when he looked at Woo's warrant, he told the police officers: " This is no good, I don't know who these children are. I'm not the father of these children. They don't live here." Eventually the police officers were able to convince Southerland, Sr. to let Woo and his co-workers in. According to Southerland, Sr., Woo took " less than 45 seconds" to go through the apartment. Woo never offered any services to Southerland, Sr. prior to removing the plaintiff children, nor did Woo point out things in the apartment that Southerland, Sr. could correct instead of removing the children.

Southerland, Sr. testified that his children were given regular meals. The girls slept on a cot, and the boys slept on mats on the floor. There was usually a shade on the lamp in the boys' bedroom, but at the time of Woo's inspection, there was no shade. Southerland, Sr. also testified that there were extension cords throughout the apartment for the lights and the television, but that they were insulated. As for the equipment stored in one of the bedrooms, Southerland, Sr. stated that the equipment was " stable" and that the plaintiff children obeyed his rule to never go into that room.

The plaintiff children also called Sergeant Christopher Aitola, one of the police officers who was called to the Southerland home on June 9, 1997. He testified that Southerland, Sr.'s apartment was " just an average apartment for that [housing development]" ; that there was nothing about the children that was unusual or noteworthy; and that he did not " reach the conclusion that the children were in any danger in that apartment."

After Sergeant Aitola, plaintiffs called Fritz Balan. Balan was a Level II Supervisor at ACS during the relevant time period, and was tasked with reviewing the Ciara Manning complaint as soon as it came to ACS. In addition to the complaint, Balan testified that he reviewed prior records ACS had on the Manning-Southerland family but that some of the records were not available to him at the time. Balan then met with his team of five caseworkers, including Woo, to discuss the Ciara Manning case. Balan then sat down with Woo only and " gave him directive [sic] actually to visit the home and assess for family functioning, attempt to learn of the demographics as to currently exists [sic] in the household and also find out who are the parents providing care for the children and which children are actually in the care of the parent."

Balan testified that because it was ACS's policy to " actually visit the home that [it] receive[s] the report with the address on it," Balan expected Woo to visit the Southerland residence at 10 Amboy Street. Balan stated that he expected Woo " to make sufficient contact [with the parent(s) and their children]" within 48 hours of receiving the complaint. If contact was not made within 72 hours, then, according to Balan, the caseworker would need to seek court intervention. Balan testified that this was the case even if the caseworker knew that the subject child

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was not living at home, because the caseworker would still have to visit the parent's home to make sure that any other children there were safe. As Balan noted, ACS is " accountable for every children or every person that are under the age of 18 in [a] household."

Balan testified that the decision to seek an order of entry was a " joint decision." Balan stated that, after Woo obtained entry, Woo had called him on the night of the removal and told him about the conditions that he had observed in the Southerland home. After hearing Woo's description, Balan testified that he " believe[d] there was enough safety concern to warrant immediate intervention for . . . all the children," and directed Woo to immediately remove them.

After Balan, each of the plaintiff children testified. They discussed their lives in the Southerland home prior to their removal, the removal, and its impact on their lives. ...

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