It's been a while my dear friends, new friends, fellow advocates and people I don't know- yet!
I know I've been slacking, however there is a fantastic reason for my absence! I decided that I had seen an undeniable pattern that needed to be investigated thoroughly.. and so off I went to investigate... What I found will surely cause chaos among those that are closed minded, in denial & are still living drama filled lives... for the rest of us... what I've found is old news with much more psychology behind it. But..... in addition to that, my dear friend Karlene, has a dear friend Donna... who found something I've been searching for since 2005!
WOW, both of the things I've come Back with are BRILLIANT Early Merry Christmas to ALL!
While I sat here Day after Day, Month after Month, Year after Year...reading what these Attorneys, Judges, Child (anything but) Protective Services Workers and the Domestic Violence Groups gave us to work with, I became more and more appalled!
The Corruption & the gang mentality is so blatant, the ignoring of the law is beyond pathetic, the way the system further abuses those of us who need their help obtaining access to our children. Instead of help... we get shit on... we get walked all over...we get lied to... we get sent on a wild goose chases, we get pit against one another... and git this- that's what we get from our own attorneys!
The Judges, just rubber stamp, some bogus, unfair bull-shit non law, or whatever they feel like stamping that day.. and off you go... never to see your kid again unless you're one of the dedicated, one of the relentless, one of the parents that will take the law into their own hands, learn it just as good as the 'dirty players' have figured it out... and if your not confident enough you'll spend thousands of dollars for what some think is a mouth piece (an attorney- who is usually working against his or her client-not for them)
Well, anyway, what I've come up with can be found on the right in the links titled: "Do you need a Strategic Intervention Holistic Life Coach helping you fight this fight?" Take a look at the web page... I'm sure after you've investigated what a Strategic Intervention, Holistic Life Coach is, you will see that each of us in this fight NEEDS ONE! So, I've partnered with a brilliant woman her name is Zoie (which means Life), who understands the dynamics behind all of the systematic abuse, including keeping our children away from us... whether or not you want to call it Parent Alienation, Parent Alienation Syndrome, Adult Child Syndrome, Child Hood Abandonment Issues, Attachment Disorder, Reactive Attachment Disorder... or whatever other name you'd like to 'label' what the courts are doing to our children and our lives.. besides straight up torture... go ahead call it what you will. But know that we now, and our children as soon as possible will need to either work with therapists or Life Coaches. (It's my opinion that working with a Life Coach is much more empowering.. they start at the here and now... and work with you to get you to the then and there (where you need to be) whereas therapy works on 'way back then'... then via all of your own work, gradually helps you connect the dots to how you ended up here.
So, as soon as you're done reading this I suggest... (1) look into the Strategic Intervention Life Coaching..in the links on the right of this page and (2) Start writing your own Writ of Habeas Corpus for Federal Court... (see below)
What Karlene's friend Donna found that I was unable to find back in 2005 & 2006 was the wording in Lect- Law (http://www.lectlaw.com/def/h001.htm) stating ...
THIS APPLIES TO FEDERAL COURTS!
*********** In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.***********
Habeas Corpus
Translates into
Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences.
In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.
In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.
The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91 (1969). Because the habeas process delays the finality of a criminal case, however, the Supreme Court in recent years has attempted to police the writ to ensure that the costs of the process do not exceed its manifest benefits. In McCleskey the Court raised barriers against successive and abusive petitions. The Court raised these barriers based on significant concerns about delay, cost, prejudice to the prosecution, frustration of the sovereign power of the States, and the "heavy burden" federal collateral litigation places on "scarce federal judicial resources," a burden that "threatens the capacity of the system to resolve primary disputes." McCleskey, 499 U.S. at 467.
The Court observed that"[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.' " McCleskey, 499 U.S. at 496 (quoting Brown v. Allen, 344 U.S. 443, 512 (1952) (opinion of Frankfurter, J.))
The predominant inquiry on habeas is a legal one: whether the "petitioner's custody simpliciter" is valid as measured by the Constitution. Coleman v. Thompson, 501 U.S. 722, 730 (1991). The purpose of the great writ is not to relitigate state trials.
Dismissal of habeas petition under the "total exhaustion" rule of Rose v. Lundy, 455 U.S. 509, 520 (1982) (each claim raised by petitioner must be exhausted before district court may reach the merits of any claim in habeas petition). Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir. 1988); see also Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (introduction of extraneous prior bad acts evidence during deliberations constitutes error of constitutional proportions), cert. denied, 114 S.Ct. 1294 (1994). However, a petitioner is entitled to habeas relief only if it can be established that the constitutional error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 & n.9 (1993). Whether the constitutional error was harmless is not a factual determination entitled to the statutory presumption of correctness under 28 U.S.C. S 2254(d). Dickson, 849 F.2d at 405; Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987).
In a habeas corpus proceeding, a federal court generally "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2553-54 (1991). This doctrine applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements. Id. at 2254; see also Sochor v. Florida, 504 U.S. 527, 119 L. Ed. 2d 326, 337 (1992). Thus, the independent state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision. Harris v. Reed, 489 U.S. 255, 264 n.10 (1988).
Habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice. O'Neal v. McAninch, 115 S. Ct. 992, 994-95 (1995). It is the responsibility of the court, once it concludes there was error, to determine whether the error affected the judgment. If the court is left in grave doubt, the conviction cannot stand. Id. On a petition for a writ of habeas corpus, the standard of review for a claim of prosecutorial misconduct, like the standard of review for a claim of judicial misconduct, is " 'the narrow one of due process, and not the broad exercise of supervisory power.' " Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). "The relevant question is whether the prosecutor['s] comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Id. (quoting Donnelly, 416 U.S. at 643).
A federal court has no supervisory authority over criminal proceedings in state courts. The only standards we can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not "of sufficient gravity to warrant the conclusion that fundamental fairness has been denied." Id. at 1572. See Gayle v. Scully, 779 F.2d at 807 (trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process); Daye, 712 F.2d at 1572 (trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, "approached but did not cross the line that permits [a ruling] that the Constitution has been violated").
The fact that a jury instruction is inadequate by Federal Court direct appeal standards does not mean a petitioner who relies on such an inadequacy will be entitled to habeas relief from a state court conviction. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In habeas proceedings challenging state court convictions, relief is available only for constitutional violations. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Cupp v. Naughten, 414 U.S. at 147 (constitutionality determined not by focusing on ailing instruction "in artificial isolation" but by considering effect of instruction "in the context of the overall charge."). See also Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (recognizing that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law" and, therefore, a habeas petitioner whose claim of error involves the failure to give a particular instruction bears an "especially heavy" burden).
Shackling, except in extreme forms, is susceptible to harmless error analysis. Castillo v. Stainer, 997 F.2d at 669. In a habeas case dealing with a state court sentence, the question is whether the shackling "had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993)). If we are in "grave doubt" whether the error affected the verdict, the error is not harmless. O'Neal v. McAninch, 115 S. Ct. 992, 994 (1995).
The risk of doubt, however, is on the state. Id. at 996 (rejecting language in Brecht v. Abrahamson which places on defendant burden of showing prejudice). See Castillo v. Stainer, 983 F.2d at 149 (finding shackling at trial harmless error because defendant only wore waist chain that could not be seen by jury).
http://www.lectlaw.com/def/h001.htm
Tuesday, December 6, 2011
Tuesday, September 13, 2011
Unable to pay child support poor parents land in jail
Judges can jail alleged defaulters — who are not covered by the presumption of innocence — without a trial.
It may not be a crime to be poor, but it can land you behind bars if you also are behind on your child-support payments.
Thousands of so-called “deadbeat” parents are jailed each year in the U.S. after failing to pay court-ordered child support — the vast majority of them for withholding or hiding money out of spite or a feeling that they’ve been unfairly gouged by the courts.
But in what might seem like an un-American plot twist from a Charles Dickens’ novel, advocates for the poor say, some parents are wrongly being locked away without any regard for their ability to pay — sometimes without the benefit of legal representation.
Randy Miller, a 39-year-old Iraqi war vet, found himself in that situation in November, when a judge in Floyd County, Ga., sent him to jail for violating a court order to pay child support.
He said he was stunned when the judge rebuffed his argument that he had made regular payments for more than a decade before losing his job in July 2009 and had recently resumed working.
“I felt that with my payment history and that I had just started working, maybe I would be able to convince the judge to give me another month and a half to start making the payments again,” he told msnbc.com. “… But that didn’t sit too well with him because he went ahead and decided to lock me up.”
Miller, who spent three months in jail before being released, is one of six plaintiffs in a class-action lawsuit filed in March that seeks to force the state of Georgia to provide lawyers for poor non-custodial parents facing the loss of their freedom for failing to pay child support.
‘Debtors’ prisons’?
“Languishing in jail for weeks, months, and sometimes over a year, these parents share one trait … besides their poverty: They went to jail without ever talking to an attorney,” according to the lawsuit filed by the nonprofit Southern Center of Human Rights in Atlanta.
While jailing non-paying parents — the vast majority of them men — does lead to payment in many cases, critics say that it unfairly penalizes poor and unemployed parents who have no ability to pay, even though federal law stipulates that they must have “willfully” violated a court order before being incarcerated.
They compare the plight of such parents to the poor people consigned to infamous “debtors’ prisons” before such institutions were outlawed in the early 1800s.
“I try very carefully not to exaggerate, but I do think that’s an apt comparison,” said Sarah Geraghty, the attorney handling the Georgia case for the Southern Center for Human Rights.
“And I think anyone who went down and watched one of these proceedings would agree with me. … You see a room full of indigent parents — most of them African-American — and you have a judge and attorney general, both of whom are white. The hearings often take only 15 seconds. The judge asks, ‘Do you have any money to pay?’ the person pleads and the judge says, ‘OK you’re going to jail,’” she added.
The threat of jailing delinquent parents is intended to coerce them to pay, but in rare cases it can have tragic results.
In June, a New Hampshire father and military veteran, Thomas Ball, died after dousing himself with gasoline and setting himself ablaze in front of the Cheshire County Court House.
In a long, rambling letter to the local Sentinel newspaper, the 58-year-old Ball stated that he did so to focus attention on what he considered unfair domestic violence laws and because he expected to be jailed at an upcoming hearing on his failure to pay up to $3,000 in delinquent child support, even though he had been out of work for two years.
The ability of judges to jail parents without a trial is possible because failure to pay child support is usually handled as a civil matter, meaning that the non-custodial parent — or the “contemnor” in legal terms — is found guilty of contempt of court and ordered to appear at a hearing.
He or she is not entitled to some constitutional protections that criminal defendants receive, including the presumption of innocence. And in five states — Florida, Georgia, Maine, South Carolina and Ohio — one of the omitted protections is the right to an attorney.
Randall Kessler, a family law attorney in Atlanta and chairman of the American Bar Association’s family law division, said states have a great deal of leeway in family law, which includes child support cases.
“The main reason states are patchwork is because family law is a local idea,” he said. “It’s very infrequent that the federal government gets into family law, except for international custody every now and then and violence against women. ... Each community’s laws are different in the way they treat child support collection, and the right to a lawyer and the right to a jury trial varies.”
He noted, however, that the ABA last year approved a resolution urging "federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low-income persons in ... adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody."
Supreme Court: No right to a lawyer
The child support program currently serves approximately 17 million U.S. children, or nearly a quarter of the nation’s minors, according to a recent study by Elaine Sorensen, a senior fellow at the Urban Institute.
Critics of incarceration without representation had hoped that the U.S. Supreme Court would end the practice in its ruling in Turner v. Rogers, a case involving a South Carolina man who was repeatedly jailed for up to a year after failing to pay child support.
But the court ruled 5-4 in June that poor parents are not entitled to a court-appointed lawyer when facing jail for non-payment of child support. Instead, the justices said, states should use “substantial procedural safeguards” to ensure that those who have no means to pay are not locked up.
That is likely to force the states that don’t guarantee the right to an attorney to tighten their policies, said Colleen Eubanks, executive director of the National Child Support Enforcement Association, which represents state agencies. “Obviously they’re going to have to look at changing the rules,” she said.
Ken Wolfe, a spokesman for the federal Administration for Children and Families, which imposes some rules on state child support enforcement agencies in exchange for funding, said the agency expects to issue guidance to the states next month regarding the Turner case. He declined to provide any details.
But Libba Patterson, a law professor at the University of South Carolina and a former director of the state Department of Social Services, said the Supreme Court ruling provides “very weak protections” for poor parents and is unlikely on its own to solve the problem of wrongful incarceration of poor parents.
“It depends on the extent to which the court is truly interested in making a full inquiry on the ability-to-pay issue and on the resources the court has and the amount of judicial time,” she said.
Even in states where the non-custodial parents do have the right to a lawyer, those without the financial resources to meet their child-support obligations still frequently land in jail.
A 2009 study by the Urban Institute, a nonpartisan policy think tank in Washington, D.C., found that only half of the child support debtors in California prisons had reported income in the two preceding years. And the median net income of the others was a mere $2,881.
65 percent of paycheck taken
Geraghty, the Southern Center for Human Rights attorney, said part of the problem is that courts often order poor parents to pay too much for child support in the first place, increasing the likelihood that they will fall behind on payments.
“One of my former clients worked at the Piggly Wiggly (supermarket) and they were taking 65 percent of her paycheck,” she said. “It left her in a position where there was simply no way that she could survive on the amount that she had left.”
No one can say how many parents are jailed each year for failing to pay child support, because states typically do not track such cases.
But an analysis of U.S. Bureau of Justice statistics in 2002 by the Urban Institute’s Sorensen suggested that approximately 10,000 parents were jailed that year for non-payment of child support, representing 1.7 percent of the overall U.S. jail population.
Most observers believe that number has risen as a result of the troubled U.S. economy.
In fiscal 2009, the most recent year for which statistics are available, the Child Support Enforcement program saw child support collections decline for the first time in the history of the program, dipping 1.8 percent, the GAO reported in January.
At the same time, payments collected from unemployment insurance benefits nearly tripled, and the number of cases in which children were receiving public assistance also rose.
Military veterans, who often struggle to find work when they leave the service, appear to be particularly at risk.
Lance Hendrix of Adel, Ga., an Army veteran, said he fell behind on child support for his 4-year-old daughter after he left the service and couldn’t find work.
“I was arrested and I went to jail and they asked me all sorts of questions,” said Hendrix, who also is a plaintiff in the Georgia lawsuit. “I was never told I was under arrest. And I was never read my rights. So I did not know what rights I had. Of course, I’ve seen all these movies, but half that isn’t true.”
Not having a lawyer in a civil contempt hearing increases the likelihood that the parent will be jailed, even if he or she is not guilty of “willfully” defying the court’s order, say critics of the policy.
‘Wrongfully imprisoned’
“In the absence of counsel … it appears that the opportunity to raise the defense is often missed, and large numbers of indigent parents are wrongfully imprisoned for failure to meet child support obligations every year,” according to a friend-of-the-court brief filed in the Turner case by the American Civil Liberties Union and other groups.
The deck is further stacked against the delinquent parent because the state often acts as the plaintiff, seeking to recover the cost of providing public assistance to the child, Geraghty said.
Officials of Georgia’s Child Support Services agency declined to comment on the state’s child support enforcement policies or the lawsuit.
But Seth Harp, a retired Georgia state senator and former member of the state’s Child Support Guidelines Commission, said the state’s judges use incarceration sparingly.
“The methodology to put someone in jail requires that the person be taken to court before a judge and there they have to be found in willful contempt — someone who actively refuses to seek work or is hiding assets, something like that,” he said. “Judges don’t want to put people in jail. … The whole purpose is to get these people to support their children.”
Harp said he’s seen the tactic work repeatedly in his long career as a family law attorney.
“You can’t get blood out of a turnip, but you can put the turnip in the cooler,” he said. “And in 34 years of doing this, it’s amazing, you put someone in the cooler and the money seems to come.”
Judge Janice M. Rosa, a supervising court judge in New York’s 8th Judicial District and a board member of the National Council of Juvenile and Family Court Judges, said the system in her state adequately protects non-custodial parents by guaranteeing them a court-appointed lawyer if they cannot afford one and carefully determining that they have the ability to pay.
“No one here is going to jail when a factory closes down and you’re one of hundreds looking for a job,” she said. “… Every state has said that debtors’ prisons are illegal, and you have to give these people a way out. You can only put them in jail if they have money and won’t pay.”
Attempt to assist both parents
Eubanks, the National Child Support Enforcement Association official, said state programs in general are doing a better job in recent years of ensuring that the poor aren’t unfairly locked up by instituting programs to help non-custodial parents improve work, life and parenting skills.
“Five to 10 years ago, the program was pretty much about enforcing support. But now it’s moving to the understanding that if parents are going to support their children, they need assistance,” she said. “Our philosophy is to provide whatever tools we can to both parents to support their children.”
She also said the recent Supreme Court decision prompted the association to conduct training and outreach to ensure that state agencies are aware of the issue and have adequate safeguards in place to prevent indigent parents from being wrongly jailed.
That is no comfort to Miller, the Iraq war veteran who was jailed for three months. He said jailing parents who fall behind on their payments is counterproductive and should be reserved for only the most egregious violators.
“I feel like it’s more unfair to the kids, because now not only do the kids not get any money, nor do they even get to spend time with their fathers once they get locked up,” he said. “The closest you can get is visitation, and who wants their kids to see them behind bars or behind glass.”
See video link and original story below...
Unable to pay child support, poor parents jailed - US news - Crime & courts - msnbc.com
It may not be a crime to be poor, but it can land you behind bars if you also are behind on your child-support payments.
Thousands of so-called “deadbeat” parents are jailed each year in the U.S. after failing to pay court-ordered child support — the vast majority of them for withholding or hiding money out of spite or a feeling that they’ve been unfairly gouged by the courts.
But in what might seem like an un-American plot twist from a Charles Dickens’ novel, advocates for the poor say, some parents are wrongly being locked away without any regard for their ability to pay — sometimes without the benefit of legal representation.
Randy Miller, a 39-year-old Iraqi war vet, found himself in that situation in November, when a judge in Floyd County, Ga., sent him to jail for violating a court order to pay child support.
He said he was stunned when the judge rebuffed his argument that he had made regular payments for more than a decade before losing his job in July 2009 and had recently resumed working.
“I felt that with my payment history and that I had just started working, maybe I would be able to convince the judge to give me another month and a half to start making the payments again,” he told msnbc.com. “… But that didn’t sit too well with him because he went ahead and decided to lock me up.”
Miller, who spent three months in jail before being released, is one of six plaintiffs in a class-action lawsuit filed in March that seeks to force the state of Georgia to provide lawyers for poor non-custodial parents facing the loss of their freedom for failing to pay child support.
‘Debtors’ prisons’?
“Languishing in jail for weeks, months, and sometimes over a year, these parents share one trait … besides their poverty: They went to jail without ever talking to an attorney,” according to the lawsuit filed by the nonprofit Southern Center of Human Rights in Atlanta.
While jailing non-paying parents — the vast majority of them men — does lead to payment in many cases, critics say that it unfairly penalizes poor and unemployed parents who have no ability to pay, even though federal law stipulates that they must have “willfully” violated a court order before being incarcerated.
They compare the plight of such parents to the poor people consigned to infamous “debtors’ prisons” before such institutions were outlawed in the early 1800s.
“I try very carefully not to exaggerate, but I do think that’s an apt comparison,” said Sarah Geraghty, the attorney handling the Georgia case for the Southern Center for Human Rights.
“And I think anyone who went down and watched one of these proceedings would agree with me. … You see a room full of indigent parents — most of them African-American — and you have a judge and attorney general, both of whom are white. The hearings often take only 15 seconds. The judge asks, ‘Do you have any money to pay?’ the person pleads and the judge says, ‘OK you’re going to jail,’” she added.
The threat of jailing delinquent parents is intended to coerce them to pay, but in rare cases it can have tragic results.
In June, a New Hampshire father and military veteran, Thomas Ball, died after dousing himself with gasoline and setting himself ablaze in front of the Cheshire County Court House.
In a long, rambling letter to the local Sentinel newspaper, the 58-year-old Ball stated that he did so to focus attention on what he considered unfair domestic violence laws and because he expected to be jailed at an upcoming hearing on his failure to pay up to $3,000 in delinquent child support, even though he had been out of work for two years.
The ability of judges to jail parents without a trial is possible because failure to pay child support is usually handled as a civil matter, meaning that the non-custodial parent — or the “contemnor” in legal terms — is found guilty of contempt of court and ordered to appear at a hearing.
He or she is not entitled to some constitutional protections that criminal defendants receive, including the presumption of innocence. And in five states — Florida, Georgia, Maine, South Carolina and Ohio — one of the omitted protections is the right to an attorney.
Randall Kessler, a family law attorney in Atlanta and chairman of the American Bar Association’s family law division, said states have a great deal of leeway in family law, which includes child support cases.
“The main reason states are patchwork is because family law is a local idea,” he said. “It’s very infrequent that the federal government gets into family law, except for international custody every now and then and violence against women. ... Each community’s laws are different in the way they treat child support collection, and the right to a lawyer and the right to a jury trial varies.”
He noted, however, that the ABA last year approved a resolution urging "federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low-income persons in ... adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody."
Supreme Court: No right to a lawyer
The child support program currently serves approximately 17 million U.S. children, or nearly a quarter of the nation’s minors, according to a recent study by Elaine Sorensen, a senior fellow at the Urban Institute.
Critics of incarceration without representation had hoped that the U.S. Supreme Court would end the practice in its ruling in Turner v. Rogers, a case involving a South Carolina man who was repeatedly jailed for up to a year after failing to pay child support.
But the court ruled 5-4 in June that poor parents are not entitled to a court-appointed lawyer when facing jail for non-payment of child support. Instead, the justices said, states should use “substantial procedural safeguards” to ensure that those who have no means to pay are not locked up.
That is likely to force the states that don’t guarantee the right to an attorney to tighten their policies, said Colleen Eubanks, executive director of the National Child Support Enforcement Association, which represents state agencies. “Obviously they’re going to have to look at changing the rules,” she said.
Ken Wolfe, a spokesman for the federal Administration for Children and Families, which imposes some rules on state child support enforcement agencies in exchange for funding, said the agency expects to issue guidance to the states next month regarding the Turner case. He declined to provide any details.
But Libba Patterson, a law professor at the University of South Carolina and a former director of the state Department of Social Services, said the Supreme Court ruling provides “very weak protections” for poor parents and is unlikely on its own to solve the problem of wrongful incarceration of poor parents.
“It depends on the extent to which the court is truly interested in making a full inquiry on the ability-to-pay issue and on the resources the court has and the amount of judicial time,” she said.
Even in states where the non-custodial parents do have the right to a lawyer, those without the financial resources to meet their child-support obligations still frequently land in jail.
A 2009 study by the Urban Institute, a nonpartisan policy think tank in Washington, D.C., found that only half of the child support debtors in California prisons had reported income in the two preceding years. And the median net income of the others was a mere $2,881.
65 percent of paycheck taken
Geraghty, the Southern Center for Human Rights attorney, said part of the problem is that courts often order poor parents to pay too much for child support in the first place, increasing the likelihood that they will fall behind on payments.
“One of my former clients worked at the Piggly Wiggly (supermarket) and they were taking 65 percent of her paycheck,” she said. “It left her in a position where there was simply no way that she could survive on the amount that she had left.”
No one can say how many parents are jailed each year for failing to pay child support, because states typically do not track such cases.
But an analysis of U.S. Bureau of Justice statistics in 2002 by the Urban Institute’s Sorensen suggested that approximately 10,000 parents were jailed that year for non-payment of child support, representing 1.7 percent of the overall U.S. jail population.
Most observers believe that number has risen as a result of the troubled U.S. economy.
In fiscal 2009, the most recent year for which statistics are available, the Child Support Enforcement program saw child support collections decline for the first time in the history of the program, dipping 1.8 percent, the GAO reported in January.
At the same time, payments collected from unemployment insurance benefits nearly tripled, and the number of cases in which children were receiving public assistance also rose.
Military veterans, who often struggle to find work when they leave the service, appear to be particularly at risk.
Lance Hendrix of Adel, Ga., an Army veteran, said he fell behind on child support for his 4-year-old daughter after he left the service and couldn’t find work.
“I was arrested and I went to jail and they asked me all sorts of questions,” said Hendrix, who also is a plaintiff in the Georgia lawsuit. “I was never told I was under arrest. And I was never read my rights. So I did not know what rights I had. Of course, I’ve seen all these movies, but half that isn’t true.”
Not having a lawyer in a civil contempt hearing increases the likelihood that the parent will be jailed, even if he or she is not guilty of “willfully” defying the court’s order, say critics of the policy.
‘Wrongfully imprisoned’
“In the absence of counsel … it appears that the opportunity to raise the defense is often missed, and large numbers of indigent parents are wrongfully imprisoned for failure to meet child support obligations every year,” according to a friend-of-the-court brief filed in the Turner case by the American Civil Liberties Union and other groups.
The deck is further stacked against the delinquent parent because the state often acts as the plaintiff, seeking to recover the cost of providing public assistance to the child, Geraghty said.
Officials of Georgia’s Child Support Services agency declined to comment on the state’s child support enforcement policies or the lawsuit.
But Seth Harp, a retired Georgia state senator and former member of the state’s Child Support Guidelines Commission, said the state’s judges use incarceration sparingly.
“The methodology to put someone in jail requires that the person be taken to court before a judge and there they have to be found in willful contempt — someone who actively refuses to seek work or is hiding assets, something like that,” he said. “Judges don’t want to put people in jail. … The whole purpose is to get these people to support their children.”
Harp said he’s seen the tactic work repeatedly in his long career as a family law attorney.
“You can’t get blood out of a turnip, but you can put the turnip in the cooler,” he said. “And in 34 years of doing this, it’s amazing, you put someone in the cooler and the money seems to come.”
Judge Janice M. Rosa, a supervising court judge in New York’s 8th Judicial District and a board member of the National Council of Juvenile and Family Court Judges, said the system in her state adequately protects non-custodial parents by guaranteeing them a court-appointed lawyer if they cannot afford one and carefully determining that they have the ability to pay.
“No one here is going to jail when a factory closes down and you’re one of hundreds looking for a job,” she said. “… Every state has said that debtors’ prisons are illegal, and you have to give these people a way out. You can only put them in jail if they have money and won’t pay.”
Attempt to assist both parents
Eubanks, the National Child Support Enforcement Association official, said state programs in general are doing a better job in recent years of ensuring that the poor aren’t unfairly locked up by instituting programs to help non-custodial parents improve work, life and parenting skills.
“Five to 10 years ago, the program was pretty much about enforcing support. But now it’s moving to the understanding that if parents are going to support their children, they need assistance,” she said. “Our philosophy is to provide whatever tools we can to both parents to support their children.”
She also said the recent Supreme Court decision prompted the association to conduct training and outreach to ensure that state agencies are aware of the issue and have adequate safeguards in place to prevent indigent parents from being wrongly jailed.
That is no comfort to Miller, the Iraq war veteran who was jailed for three months. He said jailing parents who fall behind on their payments is counterproductive and should be reserved for only the most egregious violators.
“I feel like it’s more unfair to the kids, because now not only do the kids not get any money, nor do they even get to spend time with their fathers once they get locked up,” he said. “The closest you can get is visitation, and who wants their kids to see them behind bars or behind glass.”
See video link and original story below...
Unable to pay child support, poor parents jailed - US news - Crime & courts - msnbc.com
Saturday, August 20, 2011
Everything Happens For A Reason
This evening I finally returned a phone call from a long distance friend who has been kind enough to wait till I worked through my accident & figure out my recovery in my head before receiving a call from me. I truly appreciate her being so kind!
It's been a struggle for the last few months.. I have been on serious medication which has basically kicked my ass.. my head injury has played a major role in my day to day life.. I'm lucky I can remember what I said yesterday most days.
Anywho, thank you Jules!
Now, as for why I am beginning today's blog with a thanks to Jules...
Well, Throughout the years, I've had to accept that everything happens for a reason.
Today, I received a post from Kaleah's Website "the Narcissism Free Website", and it covered exactly what I was telling Jules about an hour earlier...
I've spent the last 10 years desperately trying to figure out how I managed to be taken out of my children's lives. During my search I've had to learn about Parent alienation, Stockholm Syndrome & most importantly..
Cognitive Dissonance and Conversatinal Hypnosis.
I had to learn how Cognitive Dissonance occurs & how Conversational Hypnosis worked before I would be able to figure out how my children went from cherishing me and our relationship to tossing it and me in the garbage. I'd have to learn how someone that adores another could suddenly hate that same person.
I also needed to figure out what Neuro Linguistic Programing (NLP) was..
I've had to understand what kind of people would be evil enough to create Cognitive Dissonance in another person, or who would intentionally manipulate anothers mind for their own benefit.
I've had to go to the depths of ugly within myself and revisit my abandoned abused inner child. I've had to learn all about her and how she responds to the world she lives in.
I think it's fair to say.. I've had to go through hell and back before "I'd get it!"
Knowing what "it" is... was the hardest part of all..
One part of the "it" is being ok enuff with myself and my inner child so that she/I don't respond to every perceived hurt,or to every perceived attack, or perceived abandonment.
The other part of the "it" is knowing my inner child and calming her down enuff to know when there are people around me who are operating off their own perceived hurts, perceived attacks, or perceived abandonment issues.
The latter part is a little harder, because when 'others' are acting off their perceived hurts, perceived attacks, or perceived abandonment issues. They are then operating off their inner child's hurts and their own self preservation. And in doing so, they are "in reality" hurting, attacking and abandoning us.
Whewwwwww say that fast three times! Ok, ok, ok all joking aside...
Those of us who have been alienated from our children can get them back into our lives once we are able to focus on our inner abused/abandoned children.
Once we 'go there' and come out the other side.. we can take whatever their inner scared children give us...
However, before taking on such a huge job, I suggest you learn all you can about Cognitive Dissonance... and take an in-print into your conscious of the blog below... (Her blog helped me enormously to get where I am today)
http://www.narcissismfree.com/blog/?p=361
The Path Back To Self | Recovery from Narcissistic Abuse
Here are one of the better definitions of Cognitive Dissonance that I have found, but do your own homework...
Cognitive Dissonance and learning
Covert hypnosis - Wikipedia, the free encyclopedia
It's been a struggle for the last few months.. I have been on serious medication which has basically kicked my ass.. my head injury has played a major role in my day to day life.. I'm lucky I can remember what I said yesterday most days.
Anywho, thank you Jules!
Now, as for why I am beginning today's blog with a thanks to Jules...
Well, Throughout the years, I've had to accept that everything happens for a reason.
Today, I received a post from Kaleah's Website "the Narcissism Free Website", and it covered exactly what I was telling Jules about an hour earlier...
I've spent the last 10 years desperately trying to figure out how I managed to be taken out of my children's lives. During my search I've had to learn about Parent alienation, Stockholm Syndrome & most importantly..
Cognitive Dissonance and Conversatinal Hypnosis.
I had to learn how Cognitive Dissonance occurs & how Conversational Hypnosis worked before I would be able to figure out how my children went from cherishing me and our relationship to tossing it and me in the garbage. I'd have to learn how someone that adores another could suddenly hate that same person.
I also needed to figure out what Neuro Linguistic Programing (NLP) was..
I've had to understand what kind of people would be evil enough to create Cognitive Dissonance in another person, or who would intentionally manipulate anothers mind for their own benefit.
I've had to go to the depths of ugly within myself and revisit my abandoned abused inner child. I've had to learn all about her and how she responds to the world she lives in.
I think it's fair to say.. I've had to go through hell and back before "I'd get it!"
Knowing what "it" is... was the hardest part of all..
One part of the "it" is being ok enuff with myself and my inner child so that she/I don't respond to every perceived hurt,or to every perceived attack, or perceived abandonment.
The other part of the "it" is knowing my inner child and calming her down enuff to know when there are people around me who are operating off their own perceived hurts, perceived attacks, or perceived abandonment issues.
The latter part is a little harder, because when 'others' are acting off their perceived hurts, perceived attacks, or perceived abandonment issues. They are then operating off their inner child's hurts and their own self preservation. And in doing so, they are "in reality" hurting, attacking and abandoning us.
Whewwwwww say that fast three times! Ok, ok, ok all joking aside...
Those of us who have been alienated from our children can get them back into our lives once we are able to focus on our inner abused/abandoned children.
Once we 'go there' and come out the other side.. we can take whatever their inner scared children give us...
However, before taking on such a huge job, I suggest you learn all you can about Cognitive Dissonance... and take an in-print into your conscious of the blog below... (Her blog helped me enormously to get where I am today)
http://www.narcissismfree.com/blog/?p=361
The Path Back To Self | Recovery from Narcissistic Abuse
Here are one of the better definitions of Cognitive Dissonance that I have found, but do your own homework...
Cognitive Dissonance and learning
Covert hypnosis - Wikipedia, the free encyclopedia
Thursday, August 11, 2011
Why I've been MIA
I'm not sure how many of my readers also know me in the real world, but I'm thinkin.. not to many.
So with that in mind summ'a yawl mite be wudnerin where I've been.
I was in a pretty bad motorcycle accident, which left me in ICU for a lil over a week, then I was healing in "Kindred Hospital"
In case you, like I, don't or didn't know what kind of hospital "Kindred" is... it's a long term acute care hospital.
Well, it kinda went something like this... One minuite I was riding my bike with 25ish other people (see pic above- that was an hour or so before my accident), which I don't remember.. then the next thing I'm aware of is someone or something cutting threw my jeans... (see pic below)
I found out days later, that was them cutting my cloths off in or before or when, (shrug) I was put into the helecopter.
I arrived at Cumiunity Medical Center in P.A. (the closest trauma hospital) via helecopter, with a smashed femur, a cracked skull & a broken eye socket..
En if that wuzzent enuff, I also had a head injury.
There was blood on my brain, what wasn't known was if the blood was from my skull fracture or if my brain was bleeding!
As it turned out... the blood was from my skull fracture-which I rcieved dispite my wearing a DOT helmet.
The first responders at the sceen told my riding buddies that the only reason they were having me airlifted to a hosp. with some chance of survival was due to my wearing my helmet!
I have a google alert for any of the phrases that would bring me the article about my crash from the news paper and today I recieved the article below..
He also survived cuz he was wearing his helmet. I'm not a die hard "wear your helmet freak".. I've actually argued on the other side- if you don't want to wear it why should you have too! As it turned out I was in PA when I went down. PA is a no helmet law state- I didn't have to wear it. But after this past month.. you can bet your last dollar that I WILL!
Please enjoy the rest of this riding season a lil more for me, and always no matter what- Ride Safe!
Louise
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
It's been 40 years and 250,000 miles of motorcycling for me -- scarcely "dropping" my bike in the driveway. Until last Tuesday evening, when the ER trauma surgeon told my wife I'd not have survived the afternoon's traumatic brain injury without my helmet.
Awakening as if from a bad dream in a hospital bed at Mayo in Mankato with a mild concussion, my most recent memory was playing under a tree with my granddaughter at lunch nine hours earlier.
My confused eyes spotting the slightly abraded motorcycle helmet atop the hospital cabinet nearby, I learned I'd been in a minor accident with my motorcycle.
Witnesses said I stopped quickly to avoid rear-ending cars stopping suddenly ahead of me, ultimately going over with my bike sideways and hitting my head on the street. (A macho biker would say, "Just had to lay it down.")
Retrograde amnesia may prevent my ever remembering jumping on the smaller of my two BMW motorcycles that afternoon -- apparently quickly donning only the helmet and half-gloves to return some DVDs to the public library downtown.
It's scary; the woman who saw it all happen told me, to my astonishment, that I got to my feet conscious, amiably chatty, with only a scraped elbow. The other witness helped me upright and park my motorcycle, and called the police.
Thankfully, the Mankato police officer who lost a brother to motorcycling recognized my condition and called for an ambulance. Visiting with them days later -- my brain healing after losing two hours of memory before the accident and six hours afterward -- it's as if we've never met or talked before!
Though I'm mostly back to normal, my plans for Sturgis 2011 are canceled. If yours are on, use your helmet this week as you head to western South Dakota!
And do enjoy the gorgeous Black Hills vicariously for this recovering veteran motorcyclist.
JOHN BIPES, MANKATO, MINN.
Thursday, August 4, 2011
Victory! Peter Spitz Reunited With Son After Outrageous Family Court Injustice
Victory! Peter Spitz Reunited With Son After Outrageous Family Court Injustice
August 2, 2011
In one of the most outrageous injustices of our time, Peter Spitz (pictured right) was separated from his son and almost lost custody of him after his ex-wife shot him in the face and murdered his mother.
Fathers and Families advised Peter, helped him get legal counsel, and also publicized his case, and we are pleased to announce that Peter has now won full custody of his seven-year-old son.
Special credit and thanks goes to talented Colorado family law attorney Brett Martin (pictured below), who took on Spitz’s case and won a decisive victory–the court decision is here.
We also thank Fathers and Families Board Member Robert Franklin, Esq., who covered this case extensively and helped to advise Peter–his write-up of the new decision is below.
Together with you in the love of our children,
Glenn Sacks, MA
Executive Director,
Fathers and Families
From Fathers and Families Board Member Robert Franklin, Esq.:
Original link-
http://www.fathersandfamilies.org/?p=17985
Wednesday, June 22, 2011
Thomas James Ball
According to research approximately 330 people commit suicide monthly in the U.S. in response to the way family courts and CPS handle divorce, domestic violence and child support.
http://freekeene.com/2011/06/16/thomas-james-ball-self-immolated-in-protest-of-the-justice-system/
http://en.wikipedia.org/wiki/Thomas_James_Ball
Click links above for full story
My 2 cents- People can we say beyond abuse on the citizens due directly to
Title IV (D) & (E) Federal funding?
http://freekeene.com/2011/06/16/thomas-james-ball-self-immolated-in-protest-of-the-justice-system/
http://en.wikipedia.org/wiki/Thomas_James_Ball
Click links above for full story
My 2 cents- People can we say beyond abuse on the citizens due directly to
Title IV (D) & (E) Federal funding?
Monday, June 20, 2011
Turner v, Price (10-10)
To all family rights advocates:
Supreme Court issues big win in Turner v. Price (10-10).
http://www.supremecourt.gov/
For the entire case, click the link above..
Supreme Court issues big win in Turner v. Price (10-10).
http://www.supremecourt.gov/
For the entire case, click the link above..
Dosed in juvie jail: Triubled doctors hired to treat kids in state custody
Palm Beach PostBy Michael LaForgia
Sunday, June 19, 2011
By the time Florida started paying Dr. Gold Smith Dorval to counsel and medicate jailed children, the Pembroke Pines psychiatrist already had experience with kids in state custody.
He had used them, authorities said, to bilk the government out of money for the poor.
When Dorval pleaded no contest to a felony grand theft charge, it should have barred him, by law, from working for Florida's Department of Juvenile Justice.
It didn't.
And, like Dorval, other doctors have emerged from past troubles and gotten jobs at DJJ - with authority to prescribe drugs to kids in state jails, a Palm Beach Post investigation has found.
Some psychiatrists took DJJ jobs after they were cited for breaking the law, making grave medical missteps or violating state rules. Others were hired after they were accused of overmedicating patients, sometimes fatally.
All were empowered to prescribe drugs to jailed kids as powerful antipsychotic pills flowed freely into Florida's homes for wayward children.
"It's appalling. A psychiatrist is a psychiatrist. They're licensed, they've been to medical school, and there is a certain trust placed in that person's judgment when they tell you that this child needs to be medicated," said John Walsh, an attorney with the Palm Beach County Legal Aid Society who has represented children in juvenile court. "This just illustrates that we always have to be on guard with children."
In two years, Florida bought hundreds of thousands of tablets of Seroquel, Abilify, Risperdal and other antipsychotic drugs for children housed in state-run jails and programs. The meds were administered in a juvenile justice system that doesn't track prescriptions and has no way of telling whether doctors are prescribing to make kids easier to control.
In some jails and homes, pills were prescribed by psychiatrists who took huge speaker fees from companies that make antipsychotic drugs, The Post found. In others, the task fell to doctors with troubled pasts.
In response to the newspaper's first reports, published last month, DJJ Secretary Wansley Walters launched an investigation into the department's use of antipsychotic drugs. DJJ officials declined to discuss The Post's latest findings, citing the probe.
Spokesman C.J. Drake acknowledged, though, that the department has struggled to find psychiatrists willing to work in jails and programs. He also said DJJ sometimes has relied on companies that employ a stable of doctors, rather than signing a contract with a single physician.
As a result, Dorval went to work in a Broward County jail for children - even though he would have failed a state-mandated background check required by the contract.
Doctor's bogus billings
In the late 1990s, Dorval claimed he was providing juvenile delinquents and other vulnerable children with needed therapy. Instead, state investigators said, he used bogus counselors to bill Medicaid for more than $350,000 in fraudulent claims.
He charged the government for offering more than 24 hours' worth of children's therapy in a single day, investigators said, and structured the scheme around kids who were homeless or in DJJ custody or foster care.
He tended to bill "for those children that the system 'lost,' " according to an affidavit for his arrest.
Originally charged with four felonies in Broward, Dorval pleaded no contest to one count of grand theft in 2004.
Later, to keep his medical license, he agreed to pay $10,000 and was suspended, reprimanded and put on four years' probation.
Although a judge withheld a formal finding of guilt, the plea disqualified Dorval from seeing patients in a juvenile jail. Even so, his employer, Miami-based Compass Health Systems, sent him to work at the Broward Juvenile Detention Center between August and December 2007.
No one screened his background beforehand.
In written responses to questions, Dorval said he was doing as he was told when Compass sent him to work in the Broward juvenile jail.
"At that period you cited, the psychiatrist that was seeing patients at the DJJ was out. Therefore I was designated by the management office to go and cover for that psychiatrist, until they switched me again to another place. I was not aware of any wrongdoing," wrote Dorval, who stressed that he never signed a contract with DJJ. "I am only an employee. Wherever they send me to work I have to go."
As for the criminal charges, he offered this explanation: "This case was a simple matter that became complicated, because my first lawyer messed me up." After wrangling over the facts, "they decided to offer me a plea that would allow me to get a chance to fight for my license to practice medicine," he wrote. "It was a real nightmare that generated in me a post-traumatic syndrome that I will never forget."
DJJ officials declined to comment on Dorval's hiring, again citing the investigation.
Compass officials didn't respond to questions about Dorval.
DJJ had no contract with Compass as of May, records show.
Patient's death missed in screening
In state-operated jails and programs, the rules say DJJ must screen doctors' backgrounds and verify that physicians' hold valid medical licenses. In privately run programs, which house the majority of children in the department's custody, that responsibility falls to contracted companies.
Such screenings don't catch everything: Doctors who kept their licenses after the state accused them of serious lapses have gone on to work in juvenile jails and homes.
Dr. Charles J. Dack is an example. For six years, Dack, a Lakeland-based physician who is board-certified in addiction and child psychiatry, prescribed a cocktail of antidepressants and powerful painkillers, including methadone and morphine, to a patient named Mary Tuxbury.
Eventually, Dack ramped up the doses of pills Tuxbury was taking, keeping her "at a toxic level of morphine for approximately two and a half years," regulators from the state health department said. In March 2002, Tuxbury was found dead. She was 42.
An autopsy showed she died of "multiple drug intoxication, namely opiates and tricyclic antidepressants."
Regulators charged Dack with failing to meet care standards and inappropriate prescribing. Dack settled the allegations in August 2007. He admitted no wrongdoing but agreed to pay a $7,000 fine and complete a course on "misprescribing" drugs.
A year later, he was hired to care for children at three privately run programs in Central Florida: Wilson Youth Academy, Peace River Youth Academy and New Beginnings Youth Academy. He worked in the homes until April.
Dack didn't respond to messages seeking comment.
Doctor hired after child's death
Other DJJ doctors weren't cited by regulators, but they were accused in court of fatal neglect. Roughly one in eight of the psychiatrists who have worked for DJJ in the past five years has settled a malpractice lawsuit in Florida, records show.
Among these was Dr. Samuel McClure. As a psychiatrist in Orlando, McClure diagnosed an 11-year-old boy named David Morganthal with attention deficit disorder. He prescribed powerful, mind-altering drugs for David - even though the child was much smaller than other kids his age, according to court documents.
One morning in November 2001, David's mother woke to find her son dead on the floor of her double-wide mobile home. When they laid David out at the morgue, he measured less than 4-foot-2 and weighed 49 pounds.
Lab tests showed his blood contained an unusually high concentration of an antidepressant: about 60 percent more of the medication than doctors had expected.
The drug, mirtazapine, still hasn't been approved as safe for children. David was taking the drug along with another antidepressant that hasn't been approved for kids, citalopram.
The autopsy concluded the boy probably died from a seizure and heart problems caused by "reaction to prescription medication."
In 2004, Patty Morganthal sued McClure, the health care company he worked for and others over the death of her son, alleging medical negligence.
While the civil suit still was pending, McClure was hired in January 2006 to care for kids in DJJ's Frances Walker Halfway House and Brevard Group Treatment Home.
A year later, records show, McClure's insurance company paid $500,000 to settle Morganthal's case.
McClure worked in DJJ programs until June 2009. He couldn't be reached for comment.
Overmedicated patients.
Still another DJJ doctor got hired after he accidentally overmedicated kids with an antipsychotic drug during a clinical trial.
In summer 2006, Dr. Sohail Punjwani of Lauderhill tested the Pfizer drug on seven children between the ages of 10 and 16. Six of those kids were overdosed, according to a 2010 warning letter to Punjwani from the federal Food and Drug
Administration.
One 13-year-old "was overdosed on study medication for 20 consecutive days," the FDA said, and he emerged experiencing "sedation and dizziness."
Eighteen months later, Punjwani, who is board-certified in adult and child psychiatry, went to work in the Broward Juvenile Detention Center, placed there by his employer, Compass. He evaluated kids in the jail until June 2008, records show.
Soon after, while working for the state foster care system, he began seeing a difficult patient, 7-year-old Gabriel Myers. Punjwani prescribed mind-altering drugs for the boy, including a combination of an antipsychotic and an antidepressant. In April 2009, Gabriel hanged himself in the shower of his Margate foster home.
A work group formed to study the death never assigned blame to Punjwani, and he was not disciplined by state regulators in the widely publicized case.
A 2010 report by the FBI's Behavioral Analysis Unit, which consulted with a forensic psychiatrist on staff at Walter Reed Army Medical Center, concluded "the medications that were prescribed for Gabriel may have contributed to his actions directly prior to and during" his death.
Drug error blamed on nurse
In an interview, Punjwani said Pfizer's 2006 study was flawed, citing a 2010 FDA warning letter to the drug company, and added that his medication errors stemmed from a mistake by a nurse. He acknowledged, though, that he failed to build in a control that would have prevented overdosing.
Punjwani said he saw "very few" children at the DJJ jail who were taking mind-altering drugs. For these kids, he simply reviewed their files and maintained them on their meds, he said.
And in Gabriel's case, Punjwani said he feels he was a scapegoat.
"My care was totally appropriate and, according to some psychiatrists, went above and beyond the standard of care in the clinical community. Because I saw the patient on time, I had appropriate follow up, I had documentation," he said.
The way his critics portray him, "I look like a child killer," he added. "It's sad. I've been in practice in psychiatry for 25 years, a double board-certified child psychiatrist. Of course there are some bad outcomes. But that does not mean malpractice. That does not mean I've been hurting people."
Two-hour consultations adequate?
At a minimum, state contracts required these and other doctors to spend two hours a week evaluating jailed children.
Every week, in jails and homes that can hold a combined 6,000 boys and girls statewide, children line up to see the psychiatrist.
Paul DeMuro, a former head of Pennsylvania's child welfare system, questioned whether two hours was enough to evaluate each child, assess progress and write prescriptions.
"If you're looking at two hours of consultation a week, and there are 100 kids, and 20 or 25 are on psychotropic medications, how much attention can they give those kids?" said DeMuro, who works as a consultant for juvenile justice policy-makers nationwide. "What else are they going to do other than push pills?"
http://tinyurl.com/Psych-Investigation-Florida
Sunday, June 19, 2011
By the time Florida started paying Dr. Gold Smith Dorval to counsel and medicate jailed children, the Pembroke Pines psychiatrist already had experience with kids in state custody.
He had used them, authorities said, to bilk the government out of money for the poor.
When Dorval pleaded no contest to a felony grand theft charge, it should have barred him, by law, from working for Florida's Department of Juvenile Justice.
It didn't.
And, like Dorval, other doctors have emerged from past troubles and gotten jobs at DJJ - with authority to prescribe drugs to kids in state jails, a Palm Beach Post investigation has found.
Some psychiatrists took DJJ jobs after they were cited for breaking the law, making grave medical missteps or violating state rules. Others were hired after they were accused of overmedicating patients, sometimes fatally.
All were empowered to prescribe drugs to jailed kids as powerful antipsychotic pills flowed freely into Florida's homes for wayward children.
"It's appalling. A psychiatrist is a psychiatrist. They're licensed, they've been to medical school, and there is a certain trust placed in that person's judgment when they tell you that this child needs to be medicated," said John Walsh, an attorney with the Palm Beach County Legal Aid Society who has represented children in juvenile court. "This just illustrates that we always have to be on guard with children."
In two years, Florida bought hundreds of thousands of tablets of Seroquel, Abilify, Risperdal and other antipsychotic drugs for children housed in state-run jails and programs. The meds were administered in a juvenile justice system that doesn't track prescriptions and has no way of telling whether doctors are prescribing to make kids easier to control.
In some jails and homes, pills were prescribed by psychiatrists who took huge speaker fees from companies that make antipsychotic drugs, The Post found. In others, the task fell to doctors with troubled pasts.
In response to the newspaper's first reports, published last month, DJJ Secretary Wansley Walters launched an investigation into the department's use of antipsychotic drugs. DJJ officials declined to discuss The Post's latest findings, citing the probe.
Spokesman C.J. Drake acknowledged, though, that the department has struggled to find psychiatrists willing to work in jails and programs. He also said DJJ sometimes has relied on companies that employ a stable of doctors, rather than signing a contract with a single physician.
As a result, Dorval went to work in a Broward County jail for children - even though he would have failed a state-mandated background check required by the contract.
Doctor's bogus billings
In the late 1990s, Dorval claimed he was providing juvenile delinquents and other vulnerable children with needed therapy. Instead, state investigators said, he used bogus counselors to bill Medicaid for more than $350,000 in fraudulent claims.
He charged the government for offering more than 24 hours' worth of children's therapy in a single day, investigators said, and structured the scheme around kids who were homeless or in DJJ custody or foster care.
He tended to bill "for those children that the system 'lost,' " according to an affidavit for his arrest.
Originally charged with four felonies in Broward, Dorval pleaded no contest to one count of grand theft in 2004.
Later, to keep his medical license, he agreed to pay $10,000 and was suspended, reprimanded and put on four years' probation.
Although a judge withheld a formal finding of guilt, the plea disqualified Dorval from seeing patients in a juvenile jail. Even so, his employer, Miami-based Compass Health Systems, sent him to work at the Broward Juvenile Detention Center between August and December 2007.
No one screened his background beforehand.
In written responses to questions, Dorval said he was doing as he was told when Compass sent him to work in the Broward juvenile jail.
"At that period you cited, the psychiatrist that was seeing patients at the DJJ was out. Therefore I was designated by the management office to go and cover for that psychiatrist, until they switched me again to another place. I was not aware of any wrongdoing," wrote Dorval, who stressed that he never signed a contract with DJJ. "I am only an employee. Wherever they send me to work I have to go."
As for the criminal charges, he offered this explanation: "This case was a simple matter that became complicated, because my first lawyer messed me up." After wrangling over the facts, "they decided to offer me a plea that would allow me to get a chance to fight for my license to practice medicine," he wrote. "It was a real nightmare that generated in me a post-traumatic syndrome that I will never forget."
DJJ officials declined to comment on Dorval's hiring, again citing the investigation.
Compass officials didn't respond to questions about Dorval.
DJJ had no contract with Compass as of May, records show.
Patient's death missed in screening
In state-operated jails and programs, the rules say DJJ must screen doctors' backgrounds and verify that physicians' hold valid medical licenses. In privately run programs, which house the majority of children in the department's custody, that responsibility falls to contracted companies.
Such screenings don't catch everything: Doctors who kept their licenses after the state accused them of serious lapses have gone on to work in juvenile jails and homes.
Dr. Charles J. Dack is an example. For six years, Dack, a Lakeland-based physician who is board-certified in addiction and child psychiatry, prescribed a cocktail of antidepressants and powerful painkillers, including methadone and morphine, to a patient named Mary Tuxbury.
Eventually, Dack ramped up the doses of pills Tuxbury was taking, keeping her "at a toxic level of morphine for approximately two and a half years," regulators from the state health department said. In March 2002, Tuxbury was found dead. She was 42.
An autopsy showed she died of "multiple drug intoxication, namely opiates and tricyclic antidepressants."
Regulators charged Dack with failing to meet care standards and inappropriate prescribing. Dack settled the allegations in August 2007. He admitted no wrongdoing but agreed to pay a $7,000 fine and complete a course on "misprescribing" drugs.
A year later, he was hired to care for children at three privately run programs in Central Florida: Wilson Youth Academy, Peace River Youth Academy and New Beginnings Youth Academy. He worked in the homes until April.
Dack didn't respond to messages seeking comment.
Doctor hired after child's death
Other DJJ doctors weren't cited by regulators, but they were accused in court of fatal neglect. Roughly one in eight of the psychiatrists who have worked for DJJ in the past five years has settled a malpractice lawsuit in Florida, records show.
Among these was Dr. Samuel McClure. As a psychiatrist in Orlando, McClure diagnosed an 11-year-old boy named David Morganthal with attention deficit disorder. He prescribed powerful, mind-altering drugs for David - even though the child was much smaller than other kids his age, according to court documents.
One morning in November 2001, David's mother woke to find her son dead on the floor of her double-wide mobile home. When they laid David out at the morgue, he measured less than 4-foot-2 and weighed 49 pounds.
Lab tests showed his blood contained an unusually high concentration of an antidepressant: about 60 percent more of the medication than doctors had expected.
The drug, mirtazapine, still hasn't been approved as safe for children. David was taking the drug along with another antidepressant that hasn't been approved for kids, citalopram.
The autopsy concluded the boy probably died from a seizure and heart problems caused by "reaction to prescription medication."
In 2004, Patty Morganthal sued McClure, the health care company he worked for and others over the death of her son, alleging medical negligence.
While the civil suit still was pending, McClure was hired in January 2006 to care for kids in DJJ's Frances Walker Halfway House and Brevard Group Treatment Home.
A year later, records show, McClure's insurance company paid $500,000 to settle Morganthal's case.
McClure worked in DJJ programs until June 2009. He couldn't be reached for comment.
Overmedicated patients.
Still another DJJ doctor got hired after he accidentally overmedicated kids with an antipsychotic drug during a clinical trial.
In summer 2006, Dr. Sohail Punjwani of Lauderhill tested the Pfizer drug on seven children between the ages of 10 and 16. Six of those kids were overdosed, according to a 2010 warning letter to Punjwani from the federal Food and Drug
Administration.
One 13-year-old "was overdosed on study medication for 20 consecutive days," the FDA said, and he emerged experiencing "sedation and dizziness."
Eighteen months later, Punjwani, who is board-certified in adult and child psychiatry, went to work in the Broward Juvenile Detention Center, placed there by his employer, Compass. He evaluated kids in the jail until June 2008, records show.
Soon after, while working for the state foster care system, he began seeing a difficult patient, 7-year-old Gabriel Myers. Punjwani prescribed mind-altering drugs for the boy, including a combination of an antipsychotic and an antidepressant. In April 2009, Gabriel hanged himself in the shower of his Margate foster home.
A work group formed to study the death never assigned blame to Punjwani, and he was not disciplined by state regulators in the widely publicized case.
A 2010 report by the FBI's Behavioral Analysis Unit, which consulted with a forensic psychiatrist on staff at Walter Reed Army Medical Center, concluded "the medications that were prescribed for Gabriel may have contributed to his actions directly prior to and during" his death.
Drug error blamed on nurse
In an interview, Punjwani said Pfizer's 2006 study was flawed, citing a 2010 FDA warning letter to the drug company, and added that his medication errors stemmed from a mistake by a nurse. He acknowledged, though, that he failed to build in a control that would have prevented overdosing.
Punjwani said he saw "very few" children at the DJJ jail who were taking mind-altering drugs. For these kids, he simply reviewed their files and maintained them on their meds, he said.
And in Gabriel's case, Punjwani said he feels he was a scapegoat.
"My care was totally appropriate and, according to some psychiatrists, went above and beyond the standard of care in the clinical community. Because I saw the patient on time, I had appropriate follow up, I had documentation," he said.
The way his critics portray him, "I look like a child killer," he added. "It's sad. I've been in practice in psychiatry for 25 years, a double board-certified child psychiatrist. Of course there are some bad outcomes. But that does not mean malpractice. That does not mean I've been hurting people."
Two-hour consultations adequate?
At a minimum, state contracts required these and other doctors to spend two hours a week evaluating jailed children.
Every week, in jails and homes that can hold a combined 6,000 boys and girls statewide, children line up to see the psychiatrist.
Paul DeMuro, a former head of Pennsylvania's child welfare system, questioned whether two hours was enough to evaluate each child, assess progress and write prescriptions.
"If you're looking at two hours of consultation a week, and there are 100 kids, and 20 or 25 are on psychotropic medications, how much attention can they give those kids?" said DeMuro, who works as a consultant for juvenile justice policy-makers nationwide. "What else are they going to do other than push pills?"
http://tinyurl.com/Psych-Investigation-Florida
Thursday, June 16, 2011
Southerland v. City of New York, 07-4449-cv (L)
Tuesday, June 14, 2011
Due Process Protection May Be Returning to 2nd Circuit
Caseworker Denied Immunity for Removing Child From Home
The New York Law Journal - June 14, 2011
Southerland v. City of New York, 07-4449-cv (L)
Before: Kearse, Sack, and Hall, C.J.
07-4449-cv (L) - 06-14-2011 - Cite as: Southerland v. City of New York, 07-4449-cv (L), NYLJ 1202497024019, at *1 (2d CIR, Decided June 10, 2011) Before: Kearse, Sack, and Hall, C.J. - Decided: June 10, 2011 - ADDITIONAL INDEX NUMBERS: 07-4449-cv (L), 07-4450-cv (CON)
ATTORNEYS - Michael G. O'Neill, New York, N.Y., For Plaintiffs-Appellants Venus S., Sonny B.S. Jr., Nathaniel S., Emmanuel F., Kiam F., And Elizabeth F. - Sonny B. Southerland, Brooklyn, N.Y., Plaintiff-Appellant, Pro Se. - Julian L. Kalkstein, City of New York (Michael A. Cardozo, Corporation Counsel; Larry A. Sonnenshein, of Counsel), New York, N.Y., For Defendants-Appellees.
Consolidated appeals from a summary judgment entered by the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) in favor of, inter alios, the defendant Woo. The plaintiffs—a father and his children—bring various claims under 42 U.S.C. §1983 asserting that Woo, a children's services caseworker employed by the defendant City of New York, entered their home unlawfully and effected an unconstitutional removal of the children into state custody. The district court concluded that Woo was entitled to qualified immunity with respect to all of the claims against him. We disagree. As to each claim that has been preserved for appeal:
Vacated and remanded. ROBERT D. SACK, C.J:
This lawsuit involves a man and a woman—the plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party Diane Manning—two groups of children, and a caseworker's apparent confusion between the two groups. Plaintiff Ciara Manning is the daughter of Southerland and Diane Manning. Ciara was supposed to be living with Southerland at the time in question, but in fact had left to live with a friend. In addition to Ciara, plaintiff Southerland fathered, by one or more women other than Diane Manning, six other children: the plaintiffs Venus Southerland, Sonny B. Southerland Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix (together, the "Southerland Children"). At the time of the principal events in question, the Southerland Children, unlike Ciara, were living with their father. Diane Manning also allegedly bore, by one or more men other than Southerland, six children other than Ciara: Eric Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, Michael Manning, and Miracle Manning (together, the "Manning Children"). They lived with Diane and, like her, are not parties to this lawsuit. In May 1997, the defendant Timothy Woo, a caseworker in the Brooklyn Field Office of the New York City Administration for Children's Services ("ACS"), was assigned to investigate a report by a school counselor about then-sixteen-year-old Ciara Manning. School staff had thought Ciara to be acting strangely at school. After being unable, despite repeated attempts, to gain entry to the Southerland home to investigate the report, Woo sought and obtained from the Kings County Family Court an order authorizing entry into the apartment. Woo's application to obtain that order contained several misstatements of fact, which suggested Woo's possible confusion about which of the children resided with Southerland. Under the authority of the Family Court's order, Woo then entered the Southerland apartment. Ciara was not there; some of Southerland's other children who lived with him were. Based on what Woo perceived to be the poor condition of the home and of the Southerland Children, and his other observations from the investigation undertaken to that date, Woo and his supervisor decided to carry out an immediate removal of the children into ACS custody. Southerland and the Southerland Children brought this action based on Woo's entry into the apartment and removal of the children. They claim that Woo violated their Fourth Amendment 1 rights to be free from unreasonable searches of their home, and that the manner in which the Southerland Children were removed violated their procedural due process rights under the Fourteenth Amendment. Southerland also claims that the removal of the Southerland Children from his home violated his substantive due process rights under the
Fourteenth Amendment. Finally, the Southerland Children claim that their removal violated their Fourth Amendment rights to be free from unreasonable seizure. The district court (Charles P. Sifton, Judge) 2 concluded, inter alia, that Woo was entitled to qualified immunity with respect to all of the claims against him and granted summary judgment in his favor. We disagree with those conclusions and therefore vacate the district court's judgment as to those claims that have been pursued on appeal and remand the matter for further proceedings.
BACKGROUND
The relevant facts are rehearsed in detail in the district court's opinion. See Southerland v. City of N.Y., 521 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II"). They are set forth here only insofar as we think it necessary for the reader to understand our resolution of these appeals. Where the facts are disputed, we construe the evidence in the light most favorable to the plaintiffs, who are the nonmoving parties. See, e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). We also draw all reasonable factual inferences in the plaintiffs' favor. See, e.g., id.
The ACS Investigation
On May 29, 1997, a school guidance counselor reported to the New York State Central Registry Child Abuse Hotline that one of the school's students, Ciara Manning, the then-sixteen, year-old daughter of Diane Manning and plaintiff Southerland, was "emotionally unstable." The counselor further reported:
Fa[ther] fails to follow through w[ith] mental health referrals. On 5/12/97 the ch[ild] swallowed a can of paint. F[ather] failed to take the ch[ild] for medical attention. Fa[ther] is unable to control or supervise the ch[ild]. She may be staying out of the home in an i[m]proper enviro[n]ment. Intake Report at 3, Office of Children and Family Services, Child Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the Declaration of Janice Casey Silverberg (Dkt. No. 168) ("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). The Intake Report was transmitted to the Brooklyn Field Office of the ACS. There, Fritz Balan, a supervisor, assigned the case to defendant Timothy Woo, an ACS caseworker, for investigation. Woo, who was required by New York law to begin his investigation within 24 hours, did so that day. He first examined the files of a case pending in that ACS office regarding Ciara's mother, Diane Manning. Material in those files disclosed that Ciara had several younger half-also indicated that Ciara lived with her father, Southerland, at a Brooklyn address, although the plaintiffs correctly note the absence of any evidence as to the source of that information and the time it was received. It is not clear from the record whether Woo was aware that the children referenced in Diane Manning's case file were not related to Southerland and that they did not live with him. See Southerland II, 521 F. Supp. 2d at 222, 224 & n.8.
Woo also contacted the school guidance counselor who had called the child-abuse hotline. According to Woo, the counselor told him that while at school, Ciara had swallowed non-toxic paint, expressed thoughts of suicide, and was generally behaving aggressively and "acting out." Declaration of Timothy Woo ¶10 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). Woo's handwritten notes from the conversation indicate that the counselor told Woo that "father [i.e., Southerland] doesn't approve of the place [where Ciara] is staying." Notes of Timothy Woo at 1, Ex. A to the Declaration of Michael G. O'Neill (Dkt. No. 182) ("O'Neill Decl."), Southerland v. City of N.Y., No. 99- cv-3329 (E.D.N.Y. Dec. 28, 2006). It is disputed whether the counselor also told Woo that Southerland had been unresponsive to the school's stated concerns about Ciara's behavior. Later that day, Woo attempted to visit Southerland's apartment in Brooklyn where, for reasons that are not clear from the record, Woo thought Ciara was staying. When no one answered the door, Woo left a note containing his contact information. The following day, May 30, Southerland telephoned Woo. During the course of their conversation, Southerland described Ciara as a runaway who would not obey him. Southerland suggested that he visit the ACS office to discuss the matter with Woo further. The plaintiffs dispute Woo's assertion that during the phone conversation, Southerland indicated that he would not permit Woo to visit Southerland's apartment. Southerland contends that, although he did question why Woo needed to visit the apartment since Ciara did not live there, Southerland nonetheless indicated that he would be willing to make an appointment for Woo to conduct a home visit if Woo insisted. Southerland visited the ACS office and met with Woo later that day. According to Southerland's deposition testimony, he told Woo that Ciara had run away and that he had obtained several "Persons in Need of Supervision" ("PINS") warrants against her. Woo's case notes indicate that Woo asked Southerland why he had not sought medical attention for Ciara after the paint-swallowing incident. Southerland did not answer the question.3 See Progress Notes of T. Woo at 1 ("Progress Notes"), Ex. B to O'Neill Decl. Southerland told Woo and Balan, Woo's supervisor, that Ciara did not need psychiatric help, and that she "'was only acting the way she did to get attention.'" Southerland II, 521 F. Supp. 2d at 223 (quoting Woo Decl. ¶10); see also Declaration of Fritz Balan ¶7 (Dkt. No. 170) ("Balan Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). According to Woo, he explained to Southerland that various services were available through ACS to assist him and his children, including counseling and help with obtaining food, furniture, and clothing. Southerland declined. According to Southerland, however, no such assistance was ever offered. When Woo said he would need to make a home visit, Southerland replied that it would be "no problem" as long as he was notified in advance. Southerland II, 521 F. Supp. 2d at 223; see also Deposition of Sonny B. Southerland at 207 ("Southerland Dep."), Ex. F to O'Neill Decl. Southerland asserts that Woo stated he would call him to arrange the visit, but that Woo never made such a call. On June 2, 1997, Woo made a second attempt to examine the Southerland apartment. A woman whose identity was unknown to Woo answered the door. She said that Southerland was not at home. Woo left. The following day, June 3, Woo again went to the apartment. He heard noises inside, but no one answered the door. Again, he left. The next day, June 4, Woo went to the apartment for a fourth time. He waited in the hallway for several minutes. Southerland emerged accompanied by five school-aged children: Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down their names in his case notes. Southerland told Woo that he did not have time to talk because he was taking the children to school. Woo gave Southerland an ACS business card and told him that if he continued to be uncooperative, ACS would seek court action. Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see also Progress Notes at 2.
The Removal of the Southerland Children
On June 6, 1997, at the direction of supervisor Balan, Woo applied to the Kings County Family Court for an order to enter the Southerland apartment pursuant to section 1034(2) of the New York Family Court Act. It is ACS policy to investigate not only the status of the child named in a report of suspected abuse or maltreatment of the type referred to in section 1034(2), but also that of any other children residing in the same home. Woo listed Ciara on the application. Instead of including the names of the children he had met leaving Southerland's home on June 4, however, he listed the other children of Ciara's mother Diane—the Manning Children: Eric Anderson, Richy Anderson, Felicia Anderson, Michael Manning, Miracle Manning, and Erica Anderson—whose names he apparently had obtained from the Diane Manning case files he had reviewed at ACS's Brooklyn Field Office. 4 The Family Court issued an "Order Authorizing Entry" into the Southerland apartment the same day, June 6. See Southerland II, 521 F. Supp. 2d at 224. Three days later, on the evening of June 9, 1997, pursuant to the Order Authorizing Entry, Woo and another caseworker entered the Southerland apartment with the assistance of officers from the New York City Police Department. Southerland and the Southerland Children were present inside the home. Woo Decl. ¶¶13-15, 19. The district court described what happened next, from Woo's perspective:
Woo determined that there were six children between the ages of three and nine residing in the apartment. He listed their names [correctly] as Venus, Sonny Jr., Nathaniel, Emmanuel, Kiam, and Elizabeth Felix. Soon after beginning his evaluation of the home, Woo called his supervisor [Balan] on his cell phone, described his observations, and answered his supervisor's questions. Woo reported that the four boys slept on the floor in one bedroom and the two girls slept on a cot in another bedroom. The children appeared as though they had not been bathed in days and their clothing was malodorous. In the refrigerator, Woo found only beer, a fruit drink, and English muffins. Woo did not examine the contents of the kitchen cupboards. The other caseworker observed that one child, Venus, was limping because of a foot injury. The child stated that she had stepped on a nail. The caseworker concluded that Southerland had not sought medical attention for her. Woo reported that the only light source in the bedroom area was from a blank television screen. Woo observed an electric lamp on the floor, without a shade, connected to an outlet in the living room by means of several extension cords along the floor. Woo reported that another room contained stacks of electronic equipment. Woo and his supervisor concluded that the children's safety was threatened, and Balan directed Woo to remove the children from the home. Id. at 224-25 (footnotes omitted).5
As the district court also observed, the plaintiffs—relying primarily on later deposition testimony by Southerland—offer a starkly different description of the conditions in the Southerland home at the time. According to Southerland's testimony, the apartment did not lack proper bedding; the boys had a bunk bed in their room, although they preferred to sleep on yellow foam sleeping pads on the floor. Id. at 225 n.10. The children were not dirty; Southerland testified that he laundered the children's clothing about once a week and bathed the children daily. Id. at 225 n.11. There was food in the refrigerator, and it is also a reasonable inference from Southerland's testimony that there was food in the cupboards (which Woo did not examine), because Southerland testified that groceries for the household were purchased on a regular basis. Id. at 225 n.12. The household did not lack lighting; Southerland testified that he had a lamp plugged into a wall in each room. Id. at 225 n.14. Finally, although Southerland does not dispute that Venus had a foot injury, the plaintiffs stress Woo's concession that he did not personally observe the injury during his assessment of the home.6 Id. at 225 n.13.
In the early hours of June 10, 1997, at Balan's direction, Woo removed the Southerland Children from the Southerland home. Woo took them to the ACS pre-placement emergency shelter and arranged for emergency foster care. Id. at 226. At some point—it is not clear exactly when—Woo interviewed Ciara Manning, whom he had found living at the home of her friend. Ciara told Woo that her father had sexually abused her and threatened to kill her if she told anyone about it—allegations she later recanted. 7 The Southerland Children also complained of various kinds of abuse and mistreatment at the hands of Southerland and his companion, Vendetta Jones. These allegations concerning Ciara and the Southerland Children were included in a verified petition filed by ACS with the Family Court on June 13, 1997, and amended on June 27, 1997. The petitions commenced child-protective proceedings under Article 10 of the New York Family Court Act, §§1011 et seq., through which ACS sought to have the Southerland Children adjudicated as abused and neglected. On July 1, 1998, more than a year after the children were removed from the Southerland home, the Kings County Family Court concluded after a five-day trial that Southerland had engaged in excessive corporal punishment of the Southerland Children and that he had abused and neglected them. The court also concluded that he had sexually abused his daughter Ciara. The court ordered that the Southerland Children remain in foster care, where they had resided since the June 1997 removal. The New York Appellate Division, Second Department, affirmed these orders, see In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717 (2d Dep't 2000), and the New York Court of Appeals denied leave to appeal, see In re Ciara M., 95 N.Y.2d 767, 740 N.E.2d 653, 717 N.Y.S.2d 547 (2000). In March 2004, nearly seven years after their removal from the Southerland home, Sonny Jr. and Venus were permitted to return to live with Southerland. Some seven months thereafter, Nathaniel and Emmanuel were discharged from the juvenile justice system by the Office of Children and Family Services and also returned to the Southerland home. As far as we can determine from the record, neither Kiam nor Elizabeth ever returned to live with Southerland.
However strongly the facts of mistreatment found by the Family Court at trial may indicate that Woo's perceptions about the dangers to the Southerland Children of their remaining with Southerland were correct, virtually none of this information was in Woo's possession when he effected the June 9, 1997, entry and removal, as the district court correctly observed. See Southerland II, 521 F. Supp. 2d at 226 n.19. These subsequently determined facts therefore do not bear upon our consideration of whether Woo's actions in effecting the removal were constitutional. See id.
Prior Federal Court Proceedings
In June 1999, some two years after the removal and while the Southerland Children remained in foster care, Southerland, on behalf of himself and his children, filed a pro se complaint in the United States District Court for the Eastern District of New York against more than forty defendants for the allegedly wrongful removal of the Southerland Children from his home. On February 1, 2000, the district court (Charles P. Sifton, Judge) granted the defendants' motion to dismiss on grounds that included failure to state a claim, failure to plead certain matters with particularity, lack of subject-matter jurisdiction, and Eleventh Amendment immunity. See Opinion & Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Feb. 2, 2000). Southerland appealed. We affirmed in part, reversed in part, and remanded the action. We ruled, inter alia, that the district court had erred in dismissing Southerland's claims under 42 U.S.C. §1983 relating to the seizure and removal of the Southerland Children. See Southerland v. Giuliani, 4 F. App'x 33, 36 (2d Cir. 2001) (summary order) ("Southerland I"). We concluded that the pro se complaint stated valid claims for violations of both the substantive and procedural components of the Fourteenth Amendment's Due Process Clause. See id. at 36-37. We "emphasize[d] that our holding [wa]s limited to the claims made directly by Sonny Southerland," noting that "[a]lthough the children probably have similar claims, we have held that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Id. at 37 (citation and internal quotation marks omitted). We therefore "le[ft] it to the district court upon remand to determine whether Southerland should be given a chance to hire a lawyer for his children or to seek to have one appointed for them." Id. On remand, the district court appointed counsel to represent both Southerland and the Southerland Children.8 Southerland II, 521 F. Supp. 2d at 227. In November 2002, through counsel, Southerland and the Southerland Children jointly filed an amended complaint, id. at 221 & n.1, asserting nine claims under 42 U.S.C. §1983 against Woo and the City of New York, id. at 221 n.2.9
In the amended complaint, Southerland asserts four separate claims against Woo.10 First, Southerland alleges an unlawful-search claim, asserting that Woo's entry into his home "without privilege, cause or justification" violated the Fourth Amendment. Am. Compl. ¶¶40-41 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). Southerland asserts a second Fourth Amendment unlawful-search claim for Woo's remaining in his home even after discovering that the children listed on the Order Authorizing Entry were not there. Third, Southerland asserts a Fourteenth Amendment procedural due process claim for removal of the Southerland Children from his home without a court order and in the absence of an immediate threat of harm to their lives or health. Finally, Southerland alleges a substantive due process claim, also under the Fourteenth Amendment, for Woo's removal of the Southerland Children absent a reasonable basis for doing so. The amended complaint also interposes various claims on behalf of the Southerland Children. First, the Children assert the same procedural due process claim under the Fourteenth Amendment as does Southerland. Second, they assert a substantive due process claim under the Fourteenth Amendment. The district court recharacterized the latter claim as arising under the Fourth Amendment's guarantee of protection against unlawful seizure. 11 See Southerland II, 521 F. Supp. 2d at 230 n.24. Finally, the district court construed the amended complaint as asserting on behalf of the Children the same two Fourth Amendment unlawful-search claims as were asserted by Southerland. Southerland and the Southerland Children also bring several claims against the City of New York. Southerland asserts that the City is liable under 42 U.S.C. §1983 for the removal of the Southerland Children insofar as that removal was conducted pursuant to two alleged official City policies: to remove children without a reasonable basis, and to remove children without a court order despite the absence of any immediate threat of harm to their lives or health. Southerland and the Southerland Children also allege that high-ranking policymakers within the City's police department knew or should have known that the City's failure to train police officers accompanying ACS employees on home visits and investigations would deprive New York City residents of their constitutional rights.12
On the defendants' motion for summary judgment, the district court concluded that Woo was entitled to qualified immunity as to all of the claims against him. With respect to the Fourth Amendment unlawful-search claims, the court concluded that the false and misleading statements made by Woo in his application for the Order Authorizing Entry did not strip him of qualified immunity because the plaintiffs could not show that these statements were necessary to the finding of probable cause to enter the home. Southerland II, 521 F. Supp. 2d at 230-31. The court decided that qualified immunity was warranted because "a corrected affidavit specifying all of the information known to Woo establishes an objective basis that would have supported a reasonable caseworker's belief that probable cause existed." Id. at 231 (brackets, citation, and internal quotation marks omitted). With respect to the Southerland Children's Fourth Amendment unlawful-seizure claim, and the procedural due process claims brought by both sets of plaintiffs, the district court decided that qualified immunity shielded Woo from liability because his actions pre-dated the clear establishment of law in this context, which in its view did not occur until this Court's decision in Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000). See Southerland II, 521 F. Supp. 2d at 231-32. Lastly, with regard to Southerland's substantive due process claim, the district court concluded that Woo was entitled to qualified immunity because "it was objectively reasonable for [him] to conclude that Southerland's substantive due process rights were not violated" when Woo removed the Southerland Children from the home, because "[b]rief removals of children from their parents generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal." Id. at 32
(brackets and internal quotation marks omitted).
Notwithstanding the district court's conclusion that Woo was entitled to qualified immunity as to every claim asserted against him, the court proceeded to consider, in the alternative, the underlying merits of the plaintiffs' various claims. The court decided that even in the absence of immunity, Woo would be entitled to summary judgment with respect to the plaintiffs' Fourth Amendment unlawful-search claims and Southerland's substantive due process claim. Specifically, with respect to the Fourth Amendment unlawful-search claims, the district court decided that "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Id. at 233. With respect to Southerland's substantive due process claim, the court concluded that "no reasonable juror could find that the removal of the children from their home in order to verify that they had not been neglected or abused was so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Id. at 234-35 (citation omitted). The district court concluded that the City was also entitled to summary judgment on all of the claims against it. See Southerland II, 521 F. Supp. 2d at 235-39. The plaintiffs do not appeal from that portion of the judgment and therefore have abandoned their claims against the City. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). The district court determined, however, that without qualified immunity protection, summary judgment would not be appropriate on the merits of the procedural due process claims brought by both Southerland and the Southerland Children because, "[a]lthough defendants argue that the 'totality of the circumstances' Woo encountered in the Southerland home required an ex parte removal, they fail to explain why there was not sufficient time for Woo to seek a court order removing the children." See Southerland II, 521 F. Supp. 2d at 235 n.31. Nor would summary judgment be appropriate on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim, the district court said, because the defendants could not explain "why the particular circumstances that Woo encountered in the Southerland home established that there was imminent danger to the children's life or limb requiring removal in the absence of a court order." Id. at 234 n.29. Both Southerland and the Southerland Children now appeal from the dismissal of each of their claims against Woo, except for one Fourth Amendment claim brought by all plaintiffs. The plaintiffs have not appealed the district court's adverse ruling as to their claim that Woo violated the Fourth Amendment by remaining in their home even after determining that the children listed on the Order Authorizing Entry were not present. We vacate and remand with respect to each of the plaintiffs' claims that have been preserved for appeal.
DISCUSSION - I. Standard of Review
We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving part[ies] and drawing all reasonable inferences in [their] favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). "[S]ummary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P. 56(a).
II. Qualified Immunity - Qualified immunity shields public officials from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir. 2003) (internal quotation marks omitted). An officer is also entitled to qualified immunity "if officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context." Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d Cir. 2010) (internal quotation marks omitted).
III. Overview of Constitutional Law in the Context of the State's Removal of Children from Their Home - As we observed in a decision post-dating the events at issue in these appeals, "[p]arents…have a constitutionally protected liberty interest in the care, custody and management of their children." Tenenbaum, 193 F.3d at 593; see also Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning the "fundamental right of parents to make decisions concerning the care, custody, and control of their children"). "[C]hildren have a parallel constitutionally protected liberty interest in not being dislocated from the emotional attachments that derive from the intimacy of daily family association." Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) ("Th[e] right to the preservation of family integrity encompasses the reciprocal rights of both parent and children."). The state's removal of a child from his or her parent may give rise to a variety of cognizable constitutional claims. First, both the parents and the children may have a cause of action for violation of the Fourteenth Amendment under a theory of denial of procedural due process. The Fourteenth Amendment imposes a requirement that except in emergency circumstances, judicial process must be accorded both parent and child before removal of the child from his or her parent's custody may be effected. See, e.g., Kia P., 235 F.3d at 759-60; Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26. Both Southerland and the Southerland Children have asserted such a procedural due process claim against Woo in this case. Second, a parent may also bring suit under a theory of violation of his or her right to substantive due process. Southerland does so here. Parents have a "substantive right under the Due Process Clause to remain together [with their children] without the coercive interference of the awesome power of the state." Tenenbaum, 193 F.3d at 600 (internal quotation marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d 129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58. Such a claim can only be sustained if the removal of the child "would have been prohibited by the Constitution even had the [parents] been given all the procedural protections to which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis in original). In other words, while a procedural due process claim challenges the procedure by which a removal is effected, a substantive due process claim challenges the "fact of [the] removal" itself. Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 2000). For such claims brought by children, however, we have concluded that the Constitution provides an alternative, more specific source of protection.13 When a child is taken into state custody, his or her person is "seized" for Fourth Amendment purposes. The child may therefore assert a claim under the Fourth Amendment that the seizure of his or her person was unreasonable. See Tenenbaum, 193 F.3d at 602. Such a claim belongs only to the child, not to the parent, although a parent has standing to assert it on the child's behalf. Id. at 601 n.13. In accordance with our order in Southerland I, 4 F. App'x at 37 n.2, the district court determined that the Southerland Children's substantive due process claim should be construed instead as a Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 230 n.24. Finally, depending on the circumstances in which a removal occurs, other Fourth Amendment claims might also be viable. Here, Southerland and the Southerland Children asserted two Fourth Amendment claims for unlawful search: one claim relating to Woo's entry into the Southerland home, and one (now abandoned) claim relating to Woo's remaining in the home even after determining that the Manning Children were not present. Both claims were based on an allegation that Woo made false statements to the Family Court in order to obtain the Order Authorizing Entry, and therefore that there was no probable cause to carry out a search of the Southerland apartment.
IV. The Fourth Amendment Unlawful-Search Claims - The district court determined that summary judgment was warranted on the plaintiffs' Fourth Amendment unlawful-search claims on two separate grounds. First, the district court concluded that Woo was entitled to qualified immunity under the "corrected affidavit" doctrine. See Southerland II, 521 F. Supp. 2d at 230-31. Second, the district court decided that Woo was entitled to summary judgment on the merits because no reasonable juror could find that Woo had knowingly made false or misleading statements in seeking to obtain the Order Authorizing Entry. Id. at 233.
We disagree with both conclusions.
A. The Corrected-Affidavit Doctrine - We begin with the plaintiffs' argument that the district court erred in its application of the corrected-affidavit doctrine, under which a defendant who makes erroneous statements of fact in a search-warrant affidavit is nonetheless entitled to qualified immunity unless the false statements in the affidavit were "necessary to the finding of probable cause." Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) (internal quotation marks omitted). In order to determine whether false statements were "necessary to the finding of probable cause," the court must "put aside allegedly false material, supply any omitted information, and then determine whether the contents of the 'corrected affidavit' would have supported a finding of probable cause." Id. (citation and internal quotation marks omitted). In applying the corrected-affidavit doctrine, qualified immunity is warranted only if, after correcting for the false or misleading statements, the affidavit accompanying the warrant was sufficient "to support a reasonable officer's belief that probable cause existed." Id. (internal quotation marks omitted). The district court, which "assum[ed] for purposes of the qualified immunity defense that Woo made false and misleading statements" in applying for the Order Authorizing Entry, Southerland II, 521 F. Supp. 2d at 230, correctly noted that the plaintiffs "would still have to demonstrate that those statements were necessary to the finding of probable cause for qualified immunity not to attach to Woo's actions," id. at 230-31 (citation and internal quotation marks omitted). The court determined that Woo was entitled to qualified immunity based on its conclusion that a corrected affidavit, containing all of the information available to Woo at the time the affidavit was made, would have supported a finding of probable cause to enter the home. Id. at 231.
We disagree. Section 1034(2) of the New York State Family Court Act, which provides the evidentiary standard for a showing of probable cause sufficient for the issuance of an investigative order, governed Woo's application to obtain the Order Authorizing Entry. The district court, in its September 2007 decision, cited the statute as it had been amended in January 2007. See id. at 224 n.7. But the version that governed at the time of Woo's application was materially different. Under the version of the statute that applied at the time of Woo's actions, the affiant was required to demonstrate "probable cause to believe that an abused or neglected child may be found on premises," N.Y. Fam. Ct. Act §1034(2) (McKinney's 1997) (emphasis added), presumably meaning the "premises" identified in the application submitted to the Family Court. The district court should have engaged in its corrected-affidavit analysis with reference to the earlier law. The children that Woo listed on his application for the Order Authorizing Entry—the Manning Children and Ciara—were children who did not reside "on premises" in the Southerland home. The district court concluded that "a properly made application would still list Ciara Manning on the application because Southerland is her father and was the parent legally responsible for her care, even if she had run away." Southerland II, 521 F. Supp. 2d at 231. That may be relevant to an inquiry under the statute as amended in 2007, but it is not relevant to the appropriate question under the applicable version of the law: whether there existed probable cause for Woo to believe that Ciara Manning could be found "on premises" at the Southerland home. In fact, she, like the Manning Children, was not "on premises." And Woo had reason to know that she was not—from the information in the initial Intake Report transmitted to Woo; from the guidance counselor's statement to Woo that Southerland did not approve of the place where Ciara was staying; and from Southerland's own statements during his May 30 telephone conversation with Woo that Ciara was a runaway and did not live at his home.14 The plaintiff children point out that there were other deficiencies in the district court's corrected-affidavit analysis that undermine the court's conclusion that the information known to Woo at the time he applied for the Order Authorizing Entry would have supported a finding of probable cause. For example, Woo's application stated that Ciara "tried to kill herself by swallowing non-toxic paint," and that Southerland "did not take [Ciara] to a medical doctor and refused to take [Ciara] for psychiatric evaluation." Application for Authorization to Enter Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C to Silverberg Decl. The plaintiff children argue that the application omitted several relevant facts that, according to Southerland's version of events, were known to Woo at that time: that the paint-swallowing incident took place at school, not at home; that Southerland was willing to obtain treatment for his daughter, but had trouble doing so, precisely because she was not living in his home; and that Southerland had attempted to assert control over his daughter by applying for PINS warrants. Southerland Children's Br. at 30-31; see also id. at 28-36 (disputing additional assertions of fact, such as whether the swallowing of paint indeed was a suicide attempt). As the plaintiff children put it: Woo's omission of the fact that the incident took place at school allowed the court to assume that the suicide attempt took place in Southerland's residence. The overall picture painted by Woo is that Southerland's daughter attempted to kill herself, that Southerland did nothing about it, and refused to let others do something about it as well. By omitting the fact that the daughter was not even living at the Southerland apartment, Woo gave the family court the impression that it was necessary to allow Woo to enter the apartment in order to render assistance to a suicidal teenager in the home of a parent who could not be bothered to help her and who prevented the efforts of ACS to provide help to her. Id. at 31-32. The district court included much of this information in its recitation of facts, Southerland II, 521 F. Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these considerations into its application of the corrected-affidavit doctrine. We have observed that the materiality of a misrepresentation or omission in an application for a search warrant is a mixed question of law and fact.15 Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994). "The legal component depends on whether the information is relevant to the probable cause determination under controlling substantive law." Id. "[T]he weight that a neutral magistrate would likely have given such information," however, is a question for the factfinder. Id. In such circumstances, a court may grant summary judgment to a defendant based on qualified immunity only where "the evidence, viewed in the light most favorable to the plaintiffs, discloses no genuine dispute that a magistrate would have issued the warrant on the basis of the corrected affidavits." Walczyk v. Rio, 496 F.3d 139, 158 (2d Cir. 2007) (emphasis, citation, and internal quotation marks omitted). We cannot conclude as a matter of law—although a trier of fact might so conclude after an evidentiary hearing—that the Family Court, in deciding whether there was "probable cause to believe that an abused or neglected child may [have] be[en] found [in the Southerland home]," N.Y. Fam. Ct. Act §1034(2), would have issued the order had a corrected affidavit been presented to it.
B. Knowing or Reckless Misstatements of Fact - The district court also concluded that even if the corrected-affidavit doctrine did not apply, summary judgment was appropriate because, on the merits, "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Southerland II, 521 F. Supp. 2d at 233. Based on that premise, the district court concluded that "the [O]rder [Authorizing Entry] was issued with probable cause and Woo's entry into and search of Southerland's home did not violate plaintiffs' Fourth Amendment rights." Id. We disagree. If the district court were correct that Woo did not knowingly make false and misleading statements, that would entitle Woo to qualified immunity, but would not necessarily render his underlying conduct lawful. When a person alleges a Fourth Amendment violation arising from a search executed by a state official, "the issuance of a search warrant…creates a presumption that it was objectively reasonable for the [defendant] to believe that the search was supported by probable cause" so as to render the defendant qualifiedly immune from liability. Martinez, 115 F.3d at 115. To defeat the presumption of reasonableness, a plaintiff must make "a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause" for which the warrant was issued. Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal quotation marks omitted), cert. denied, 505 U.S. 1221 (1992). We need not consider further whether the district court erred by confusing the qualified immunity and merits analyses, however, because we also do not agree with the district court's premise that no reasonable juror could find that Woo did not knowingly or recklessly make false statements. We think that several disputed facts, taken together and viewed in the light most favorable to the plaintiffs, would permit—though not require—a reasonable factfinder to find otherwise.
First, substantial evidence, viewed in the light most favorable to the plaintiffs, suggests that Woo had reason to know that Ciara was not residing at the Southerland home when he applied for the Order Authorizing Entry. For example, the May 29 Intake Report informed ACS that Ciara "may be staying out of the home in an i[m]proper enviro[n]ment." Intake Report at 3. And Southerland told Woo on May 30 that Ciara was a runaway and that he had taken out PINS warrants against her. Southerland II, 521 F. Supp. 2d at 223. A reasonable juror could find that Woo's application to the Family Court on June 6 was knowingly or recklessly misleading in stating: "I have reasonable cause to believe that the above named children [including Ciara] may be found at the above premises [the Southerland home]." June 6 Application at 1. Second, evidence in the record, again viewed in the light most favorable to the plaintiffs, would permit a reasonable juror to conclude that Woo had knowingly or recklessly misrepresented the nature of the paint-swallowing incident in his application. About one week before June 6, Woo learned from a school counselor that Ciara had "swallowed non-toxic paint at school" and had been "acting out and expressing thoughts of suicide." Woo Decl. ¶6. Although the counselor informed Woo that Southerland had failed to seek medical treatment for Ciara, see id., Southerland later explained to Woo that the reason he had not taken Ciara for treatment was that she did not reside with Southerland and did not listen to him, id. ¶8. Yet Woo's application represented to the Family Court that Ciara "tried to kill herself by swallowing non-toxic paint" and that Southerland "did not take [her] to a medical doctor and refused to take [her] for psychiatric evaluation." June 6 Application at 1. A reasonable trier of fact might find the foregoing statements to be materially misleading insofar as they characterize Ciara's paint-swallowing as a suicide attempt; fail to note that the incident occurred at school rather than in Southerland's home; and omit the fact that Ciara may have been living outside the home and free from Southerland's control. Finally, the district court overlooked the parties' dispute concerning Woo's knowledge about which children resided in the Southerland apartment. The district court stated that Woo "had reason to believe that the Manning children would be found in the Southerland apartment because of a separate investigation of the Manning children and his personal observation that there were other children in the Southerland home who had not yet been positively identified." Southerland II, 521 F. Supp. 2d at 233. But, as the district court opinion elsewhere observes, on June 4, 1997—two days before he applied for the Order Authorizing Entry—Woo met the Southerland Children emerging from the Southerland apartment and wrote down their names. See id. at 223-24 & n.6. We think that there is a triable issue of fact as to whether Woo in fact believed, as he wrote in his application to the Family Court, that it was the Manning Children and not the Southerland Children who were in the Southerland home, or whether he recklessly confused or knowingly conflated the two.
Although these alleged misrepresentations may turn out to be no more than accidental misstatements made in haste, the plaintiffs have nonetheless made a "substantial preliminary showing" that Woo knowingly or recklessly made false statements in his application for the Order Authorizing Entry. Golino, 950 F.2d at 870 (internal quotation marks omitted). This showing rebuts the presumption of reasonableness that would otherwise apply to shield Woo with qualified immunity at the summary judgment stage. In sum, because we conclude that genuine issues of material fact exist, both as to whether Woo knowingly or recklessly made false statements in his affidavit to the Family Court and as to whether such false statements were necessary to the court's finding of probable cause, we vacate the district court's grant of summary judgment on the plaintiffs' Fourth Amendment unlawful-search claims. Once again, we note that a trier of fact might, after review of the evidence, conclude that the errors in the June 6 Application were either accidental or immaterial. We vacate the grant of summary judgment because we cannot reach that conclusion ourselves on the current record as a matter of law.
V. The Plaintiffs' Procedural Due Process Claims - Southerland and the Southerland Children each assert a procedural due process claim against Woo. The district court held that Woo was entitled to qualified immunity on these claims. We disagree.
A. Procedural Due Process in the Child-Removal Context - "'As a general rule…before parents may be deprived of the care, custody, or management of their children without their consent, due process—ordinarily a court proceeding resulting in an order permitting removal—must be accorded to them.'" Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 593). "However, 'in emergency circumstances, a child may be taken into custody by a responsible State official without court authorization or parental consent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). "'If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). To prevail, "[t]he government must offer 'objectively reasonable' evidence that harm is imminent." Id. Although we have not exhaustively set forth the types of factual circumstances that constitute imminent danger justifying emergency removal as a matter of federal constitutional law, we have concluded that these circumstances include "the peril of sexual abuse," id., the "risk that children will be 'left bereft of care and supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991)), and "immediate threat[s] to the safety of the child," Hurlman, 927 F.2d at 80 (internal quotation marks omitted); see also N.Y. Fam. Ct. Act §1024(a) (defining emergency circumstances, for the purposes of state law, as "circumstance[s]" wherein a child's remaining in the parent's care and custody "presents an imminent danger to the child's life or health").
B. Analysis - The district court correctly concluded that summary judgment was not appropriate on the underlying merits of the plaintiffs' procedural due process claims because Woo did not demonstrate, as a matter of law, that he did not have time to obtain a court order authorizing the removal of the Southerland Children before taking that act. See Southerland II, 521 F. Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171). The court nonetheless granted summary judgment on qualified immunity grounds, concluding that "the law concerning procedural due process rights in the context of child removals was not clearly defined at the time of the events in question." Id. at 232. But in Hurlman, we recognized that officials may remove a child from the custody of the parent without consent or a prior court order only in "emergency" circumstances. Emergency circumstances mean circumstances in which the child is immediately threatened with harm, for example, where there exists an immediate threat to the safety of the child, 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, 927 F.2d at 80 (citations and internal quotation marks omitted); see also Robison v. Via, 821 F.2d 913, 921-22 (2d Cir. 1987) (describing the "'emergency' circumstances" exception and collecting cases).16 It thus was clearly established at the time of the Southerland Children's removal that state officials could not remove a child from the custody of a parent without either consent or a prior court order unless "'emergency' circumstances" existed. Hurlman, 927 F.2d at 80; see also Cecere v. City of N.Y., 967 F.2d 826, 829-30 (2d Cir. 1992) (setting forth "clearly established" procedural due process principles); see also Velez v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) (explaining the principles). In concluding that the law of procedural due process was not clearly established in the child-removal context in 1997, the district court in the case at bar relied primarily on our decision in Tenenbaum. There we held as a matter of first impression that "where there is reasonable time consistent with the safety of the child to obtain a judicial order, the 'emergency' removal of a child is unwarranted." Tenenbaum, 193 F.3d at 596. Because this principle was not clearly established in 1990—the year the underlying conduct at issue in Tenenbaum took place—we affirmed the district court's decision in that case that the defendants were entitled to qualified immunity. We also made clear, however, that even in 1990, "it was established as a general matter…that 'except where emergency circumstances exist' a parent can 'not be deprived' of the custody of his or her child 'without due process, generally in the form of a predeprivation hearing.'" Id. at 596 (quoting Hurlman, 927 F.2d at 79). In the present case, the plaintiffs assert "not solely that defendants had sufficient time to obtain a court order, but that the circumstances in which Woo found the children did not warrant their removal at all, whether evaluated by pre—or post—Tenenbaum standards." Southerland Children's Br. at 39.17 We understand the plaintiffs' contention to be that "emergency circumstances" warranting removal simply did not exist. The district court did not decide as a matter of law that emergency circumstances existed in the Southerland home. To the contrary, the district court concluded that "[v]iewing the facts in the light most favorable to plaintiffs, a reasonable juror could determine that the circumstances Woo encountered did not demonstrate an imminent danger to the children's life or limb." Southerland II, 521 F. Supp. 2d at 234 n.29. The court further decided that "a reasonable juror could find that there was sufficient time to acquire a court order prior to the removal." Id. at 235 n.31. In light of those determinations, with which we agree, and our assessment that the relevant law was clearly established in 1997, we cannot conclude as a matter of law that "it was objectively reasonable for [Woo] to believe [that his] acts did not violate those [clearly established] rights." Holcomb, 337 F.3d at 220. Qualified immunity therefore is not available to Woo on the plaintiffs' procedural due process claims at the summary judgment stage. Because summary judgment also cannot be granted to the defendants on the underlying merits of these claims,18 we vacate the grant of summary judgment to Woo as to the procedural due process claims.
VI. Southerland's Substantive Due Process Claim
Southerland asserts a substantive due process claim against Woo under the Fourteenth Amendment. The district court held not only that qualified immunity attached to Woo's actions, but also that summary judgment would be warranted on the merits even in the absence of qualified immunity. We disagree with both conclusions.
A. Substantive Due Process in the Child-Removal Context - Substantive due process guards a person's rights "against the government's 'exercise of power without any reasonable justification in the service of a legitimate governmental objective.'" Tenenbaum, 193 F.3d at 600 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). "To establish a violation of substantive due process rights, a plaintiff must demonstrate that the state action was 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Lewis, 523 U.S. at 847 n.8). The interference with the plaintiff's protected right must be "'so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.'" Anthony, 339 F.3d at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523 U.S. at 840 (doctrine of substantive due process "bar[s] certain government actions regardless of the fairness of the procedures used to implement them" (internal quotation marks omitted)). Thus, in the child-removal context, we ask whether "the removal…would have been prohibited by the Constitution even had the [plaintiffs] been given all the procedural protections to which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis omitted). We have long recognized that parents have a "constitutionally protected liberty interest in the care, custody and management of their children," id. at 593, and that the deprivation of this interest is actionable under a theory of substantive due process, see id. at 600 (recognizing a "substantive right under the Due Process Clause 'to remain together without the coercive interference of the awesome power of the state'" (quoting Duchesne, 566 F.2d at 825)). We have also observed, however, that "[a]lthough parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves." Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation marks omitted), cert. denied, 528 U.S. 1155 (2000). We have explained that, in part because the law contemplates a careful balancing of interests, a parent's substantive constitutional rights are not infringed if a caseworker, in effecting a removal of a child from the parent's home, has a reasonable basis for thinking that a child is abused or neglected. See id. "This Circuit has adopted a standard governing case workers which reflects the recognized need for unusual deference in the abuse investigation context. An investigation passes constitutional muster provided simply that case workers have a 'reasonable basis' for their findings of abuse." Id.; see also id. at 108 (concluding that the "reasonable basis test" requires that caseworkers' decisions to substantiate an allegation of child abuse "be consistent with some significant portion of the evidence before them"). We have applied this "reasonable basis" standard from time to time in recent years. See, e.g., Nicholson, 344 F.3d at 174; Phifer v. City of N.Y., 289 F.3d 49, 60 (2d Cir. 2002); Kia P., 235 F.3d at 758-59. We have also recognized that substantive due process claims in the child-removal context have a temporal dimension. Because state interference with a plaintiff's liberty interest must be severe before it rises to the level of a substantive constitutional violation, see, e.g., Anthony, 339 F.3d at 143, "brief removals [of a child from a parent's home] generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal," Nicholson, 344 F.3d at 172 (citing Tenenbaum, 193 F.3d at 600-01 & n.12); see also Cecere, 967 F.2d at 830 (ruling that plaintiff's due process claim failed because a "brief" four-day removal, executed "in the face of a reasonably perceived emergency," did not violate due process); Joyner ex rel. Lowry v. Dumpson, 712 F.2d 770, 779 (2d Cir. 1983) (no substantive violation where temporary transfer of custody to foster-care system did not "result in parents' wholesale relinquishment of their right to rear their children").
B. Analysis - The district court, in deciding that qualified immunity protection prevailed, concluded that it was objectively reasonable for Woo to think that Southerland's substantive due process rights were not being violated because "[b]rief removals of children from their parents generally do not rise to the level of a substantive due process violation," Southerland II, 521 F. Supp. 2d at 232 (brackets and internal quotation marks omitted), and because the Southerland Children "were removed in the context of a child protective investigation [in which] removal would be subject to court confirmation," id.; see also id. at 234 (suggesting that "a family court judge confirmed the removal" at a "timely post-deprivation hearing"). We agree in principle. The removal of a child from his or her parent does not violate the parent's substantive due process rights if a post-removal judicial proceeding is promptly held to confirm that there exists a reasonable basis for the removal. The period of time in which the child and parent are separated at the sole instruction of the defendant is, in such a case, not severe enough to constitute a substantive due process violation by the defendant. See Nicholson, 344 F.3d at 172; Tenenbaum, 193 F.3d at 600-01. If it were clear in the record that the removal of the Southerland Children was confirmed by a prompt and adequate judicial confirmation proceeding, we would agree with the district court that summary judgment would be appropriate on that basis. But the record is not sufficiently clear for us to determine whether such a post-removal judicial proceeding occurred, and if so, the nature of it. The district court stated that the Southerland Children were removed and held in ACS custody "pending a timely post-deprivation hearing where a family court judge confirmed the removal." Southerland II, 521 F. Supp. 2d at 234. And the court had previously observed that the Southerland Children "remained in custody without a court order until the morning of June 12, 1997"—about forty-eight hours—"at which time Woo obtained a court order confirming the removal." Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL 2224432, at *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 2, 2006). Although the parties do not appear to dispute that a post-removal judicial confirmation proceeding was held, nor do they dispute that this proceeding took place within several days after removal, they provide no further detail upon which we can assess the nature of the proceeding in terms of its timeliness and adequacy.19
We are also unable to determine from the present record on what factual basis the Family Court decided that the continued removal of the Southerland Children was warranted. We do not know, for example, whether its decision to confirm the removal was based solely on written submissions by Woo to the same effect and containing the same errors as Woo's application for the Order Authorizing Entry. Apparently relying on the understanding that the Family Court had promptly confirmed the Southerland Children's removal, the district court concluded that no reasonable trier of fact could find that the removal of the Children was "so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Southerland II, 521 F. Supp. 2d at 235 (citation omitted). For much the same reason that we conclude that material questions of fact preclude summary judgment on the merits of the plaintiffs' procedural due process claims, however, we conclude that summary judgment was inappropriate on the merits of Southerland's substantive due process claim. A plaintiff's substantive due process claim fails if "there is an objectively reasonable basis for believing that parental custody constitutes a threat to the child's health or safety." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). Although this "reasonable basis" standard appears to impose a lesser burden on a defendant than the "emergency circumstances" standard applicable to procedural due process claims, summary judgment is nevertheless not appropriate unless "there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico, 132 F.3d at 149. The facts concerning the nature of Southerland's behavior during Woo's investigation and the conditions in the Southerland apartment at the time that Woo effected the removal remain hotly contested by the parties. For example, while Woo contends that the apartment lacked enough food, lighting, and bedding; that the Children were malodorous; and that various safety hazards were present, Southerland has tendered admissible evidence (albeit largely in the form of his own testimony) that each of those factual assertions is false. If the trier of fact were to credit Southerland's account, we cannot say that it would be unreasonable for it to then conclude that a reasonable caseworker in Woo's position lacked an "objectively reasonable basis" for removing the Children, Gottlieb, 84 F.3d at 518, and thus that Woo's actions were "shocking, arbitrary, and egregious," Anthony, 339 F.3d at 143 (internal quotation marks omitted). Moreover, in the absence of record evidence as to the substance of the post-removal judicial confirmation proceeding, we cannot conclude that the fact that the Family Court confirmed the removal of the Southerland Children suffices to show that Woo's conduct had an objectively reasonable basis. Cf. Southerland II, 521 F. Supp. 2d at 234-35.
Finally, we consider whether Woo is nonetheless entitled to summary judgment on the basis of qualified immunity. As noted, qualified immunity is available to defendants "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818; see also Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir.), cert. denied, 131 S. Ct. 158 (2010). When a defendant official invokes qualified immunity as a basis for summary judgment, a court must consider not only whether evidence in the record suggests a violation of a statutory or constitutional right, but also "whether that right was clearly established at the time of the alleged violation." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Thus, if it could be shown that, at the time of the events in question, Woo lacked a legal basis upon which he could conclude that his actions would violate Southerland's substantive due process rights, Woo would be entitled to qualified immunity. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer [in the position of the defendant] that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In answering that question, we consider: "(1) whether the right was defined with reasonable specificity; (2) whether Supreme Court or court of appeals case law supports the existence of the right in question, and (3) whether under preexisting law a reasonable defendant would have understood that his or her acts were unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). "The task of framing the right at issue with some precision is critical in determining whether that particular right was clearly established at the time of the defendants' alleged violation." Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010); see also Wilson v. Layne, 526 U.S. 603, 609 (1999). Although the matter of whether a right at issue is clearly established is a question of law, Higazy v. Templeton, 505 F.3d 161, 170 (2d Cir. 2007), that question is "tied to the specific facts and context of the case," Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007). In 1997, when Woo effected the removal, it was well established as a general matter that parents possess a substantive right under the Due Process Clause of the Fourteenth Amendment to exercise care, custody, and control over their children. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Gottlieb, 84 F.3d at 518; Joyner ex rel. Lowry, 712 F.2d at 777. It was also the law, however, that where "parental custody constitutes a threat to the child's health or safety, government officials may remove a child from his or her parents' custody at least pending investigation." Gottlieb, 84 F.3d at 518; see also Stanley v. Illinois, 405 U.S. 645, 649-53 (1972); Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). We therefore determined prior to 1997 that where the state has an "objectively reasonable basis" for removing a child from his or her parent, the parent's substantive constitutional rights are not infringed. Gottlieb, 84 F.3d at 518; see generally id. at 520; van Emrik v. Chemung County Dep't of Soc. Servs., 911 F.2d 863, 866 (2d Cir. 1990). We also repeatedly assured potential defendants that qualified immunity would be available to "protect state officials in choosing between [difficult] alternatives, provided that there is an objectively reasonable basis for their decision, whichever way they make it." van Emrik, 911 F.2d at 866; see also Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (per curiam) (qualified immunity exists to "insure that publicly employed caseworkers have adequate latitude to exercise their professional judgment in matters of child welfare"). In 1999, two years after the events in question here, we summarized the state of the law in Wilkinson: "Although parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the 'compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.'" Wilkinson, 182 F.3d at 104 (quoting Manzano v. S.D. Dep't of Soc. Servs., 60 F.3d 505, 510 (8th Cir. 1995) (internal quotation marks omitted)). We observed that "[t]he difficulty of balancing the weighty interests apparent in the [child] abuse context…has prompted courts to impose few concrete restrictions on case workers, in exercising their discretion, short of [certain] obvious extremes." Id. We described those "extremes" as including circumstances where a caseworker "ignor[es] overwhelming exculpatory information" or "manufactur[es] false evidence." Id. We concluded in dicta that our decisions to that date had left the defendants at bar "with little or no indication that their alleged misconduct, as near as it was to the constitutional borderline, would have even implicated serious constitutional concerns." Id. at 107; see also Patel v. Searles, 305 F.3d 130, 139 (2d Cir. 2002), cert. denied, 538 U.S. 907 (2003). Our discussion in Wilkinson would seem to suggest that perhaps there was a lack of clearly established law available to guide Woo's conduct. We nonetheless cannot conclude as a matter of law that, in 1997, Woo lacked sufficient legal guidance by which to discern the lawfulness of his actions. Assuming, as we must at the summary judgment stage, that the factual circumstances are as Southerland, not Woo, describes them, and resolving all credibility questions and drawing all reasonable inferences in Southerland's favor, we are not able to say that Woo would then have lacked a legal basis for understanding that removing the children from their home would be unlawful. Indeed, the district court here was also of the view that "Southerland's substantive due process rights were clearly established at the time of the removal of the children." Southerland II, 521 F. Supp. 2d at 232. We therefore cannot conclude on this record that the principles of law applicable to the facts as we must view them on appeal from a grant of summary judgment were not clearly established in 1997. Woo is thus not entitled at this stage to qualified immunity on Southerland's substantive due process claim, although, again, once the relevant disputes of material fact are resolved, the district court might eventually conclude that Woo is entitled to such immunity.
VII. The Southerland Children's Fourth Amendment Unlawful-Seizure Claim - Finally, the Southerland Children assert a claim for violation of their own substantive due process rights, which the district court recharacterized as a claim of unlawful seizure under the Fourth Amendment. See Southerland II, 521 F. Supp. 2d at 227 n.22, 230 n.24. The district court concluded that Woo was entitled to qualified immunity because "prior to the Court of Appeals' decision in Tenenbaum [in 1999], there was no clear application of Fourth Amendment standards in the child removal context." Id. at 231. Although we agree with the district court's observation that this Circuit had not yet applied Fourth Amendment unlawful-seizure principles in the child-removal context by 1997, we think that the district court erred by conducting its inquiry solely by reference to the Fourth Amendment. Our decision in Tenenbaum effected a change in the legal framework applicable to a child's claim for substantive constitutional violations arising out of the child's removal from his or her parent's home. There, the plaintiffs contended that "[their daughter's] temporary removal for the purpose of subjecting her to a medical examination violated their and [the daughter's] substantive due-process rights." Tenenbaum, 193 F.3d at 599. Relying on Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion of Rehnquist, C.J.), we observed thatvwhere a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims. Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks omitted). We said that "'[s]ubstantive due process analysis is…inappropriate…if [the] claim is covered by the Fourth Amendment.'" Id. at 600 (quoting Lewis, 523 U.S. at 843) (second brackets in original; other internal quotation marks omitted). We then concluded that the daughter's "removal and her examination constituted a seizure and search, respectively, under the Fourth Amendment," id., and that her claim "therefore 'must be analyzed under the standard appropriate to [the Fourth Amendment], not under the rubric of substantive due process.'"20 Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). The fact that Tenenbaum changed the legal "rubric" applicable to the Southerland Children's constitutional claims, however, is not determinative of whether their rights were clearly established in 1997. It would be inappropriate, we think, to afford Woo qualified immunity on the Southerland Children's claims solely because, two years after the events in question, we shifted the constitutional framework for evaluating those claims from the Fourteenth to the Fourth Amendment.
We reached a similar conclusion in Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818 (2007). There we made clear that the constitutional "right to be free from prolonged detention caused by law enforcement officials' mishandling or suppression of exculpatory evidence," id. at 211, was a species of the right to be free from unlawful seizure under the Fourth Amendment, not a substantive due process right under the Fourteenth Amendment, see id. at 208-09. In then proceeding to undertake a qualified immunity inquiry, we cautioned that our "clarification [of the law was] of no consequence to the question of whether the right was clearly established [at the time of the relevant events], because the proper inquiry is whether the right itself—rather than its source—is clearly established." Id. at 212 (collecting cases; emphasis in original). Here, as in Russo, in inquiring whether there was clearly established law to govern the Southerland Children's claims in 1997, we look not only to authorities interpreting the Fourth Amendment, but to all decisions concerning the same substantive right. At the time of the events in question in this case, a child's claim for violation of his or her right to "preservation of family integrity," Duchesne, 566 F.2d at 825, would likely have been understood to arise under the substantive due process guarantee of the Fourteenth Amendment. This right had been recognized in our case law by 1997, see Joyner ex rel. Lowry, 712 F.2d at 777-78; Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982); Leonhard v. United States, 633 F.2d 599, 618 (2d Cir. 1980) (collecting cases); Duchesne, 566 F.2d at 825, although it had been less frequently litigated than the corresponding substantive parental right. As with the corresponding parental right, however, the law in 1997 also recognized the countervailing principle that the state may remove children from the custody of their parents without violating the children's constitutional rights where there is a reasonable basis for concluding that the children are abused or neglected. See, e.g., Rivera, 696 F.2d at 1017.
For much the same reason that we determined that Woo is not entitled to qualified immunity as a matter of law on the current record as to Southerland's substantive due process claim, resolving all disputed facts in the plaintiffs' favor for these purposes, we conclude that a reasonable caseworker in Woo's position would not have lacked a sufficient legal basis for knowing that his conduct under those circumstances would infringe upon the substantive constitutional rights of the Southerland Children. As with the other claims addressed in these appeals, though, the district court may yet conclude on remand and after further development of the facts that Woo is entitled to qualified immunity in this context.
Finally, we note that the district court concluded that, in the absence of qualified immunity protection, Woo would not be entitled to summary judgment on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 234 n.29. We have no reason to disturb that ruling on appeal.
CONCLUSION - For the foregoing reasons, we vacate the district court's grant of summary judgment on each of the plaintiffs' claims that have been preserved for appeal: (1) Southerland's and the Southerland Children's claims for Fourth Amendment violations arising out of the allegedly unlawful search of the Southerland home; (2) Southerland's and the Southerland Children's claims for violations of procedural due process under the Fourteenth Amendment; (3) Southerland's claim for violation of substantive due process under the Fourteenth Amendment; and (4) the Southerland Children's claim for unlawful seizure under the Fourth Amendment. We remand for further proceedings. *. The Clerk of Court is directed to amend the official caption in accordance with the foregoing.
--------------------Footnotes:
1. We refer throughout this opinion to asserted Fourth Amendment rights of the plaintiffs. Inasmuch as the defendants are state and not federal actors, of course, whatever rights the plaintiffs have are "under the Fourth Amendment, as applied to the States under the Fourteenth Amendment['s]" Due Process Clause. Kia P. v. McIntyre, 235 F.3d 749, 761 (2d Cir. 2000); see Mapp v. Ohio, 367 U.S. 643, 655 (1961).
2. Judge Sifton passed away while these appeals were pending.
3. Southerland later testified that the school contacted him with a medical referral after the paint-swallowing incident, and that he had tried to get Ciara to go to the appointment that was scheduled for her, but that she refused to go.
4. Woo listed the Manning Children's names at the top of the application, along with Southerland's name and the address of the Southerland apartment. The body of the application states in its entirety: I, Timothy Woo, Caseworker for ACS, am a person conducting a child protective investigation pursuant to the Social Services Law. I have reasonable cause to believe that the above named children may be found at the above premises. I have reason to believe that the children are abused or neglected children. The reasons and the sources of information are as follows: That on May 12, 1997, Sierra [sic] Manning, age 16 tried to kill herself by swallowing non-toxic paint. Mr. Sutherland [sic] did not take Sierra [sic] to a medical doctor and refused to take Sierra [sic] for psychiatric evaluation. Mr. Sutherland [sic] has refused to allow the Administration for Children's Services into his home to speak to the above named children. WHEREFORE, the applicant moves for an order authorizing the Administration for Children's Services accompanied by police to enter the premises to determine whether the above named children are present and to proceed thereafter with its child protective investigation. Application for Authorization to Enter Premises dated June 6, 1997, Ex. C to Silverberg Decl.
5.The district court summarized Woo's and Balan's stated reasons for removing the Children as including: the seriousness of the initial allegation in the Intake Report—that Ciara had attempted suicide; that Southerland had failed to seek medical assistance for Ciara or for Venus; that he had resisted allowing ACS to visit his home; that he had refused to accept ACS services or assistance; that the home lacked food and adequate light; that the use of multiple extension cords for the electronic equipment was dangerous; and that the children were dirty. This combination of factors, according to Woo and Balan, "established in [their] minds that Southerland could not parent the children responsibly." Southerland II, 521 F. Supp. 2d at 225.
6. After the Southerland Children's removal, Woo brought Venus "to a hospital based on the instructions of a nurse at the agency that first examined the children. At the hospital, the wound was dressed and the child received a tetanus shot." Southerland II, 521 F. Supp. 2d at 225 n.13.
7. On March 14, 2007, Southerland made a pro se submission to the district court requesting that the court take judicial notice of a number of documents, including a declaration by Ciara Manning that had been sworn on April 20, 2002. In that declaration, Ciara stated that Southerland had never molested or abused her in any way and that the statements she made previously to Woo and to the Family Court to that effect were false. See Pro Se Submission of Sonny B. Southerland at 26-27 (Dkt. No. 192), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Mar. 14, 2007). 13
8. Michael G. O'Neill was appointed as counsel for both Southerland and the Southerland Children. In April 2004, Southerland resumed proceeding pro se before the district court, while Mr. O'Neill continued to represent the Southerland Children (including Venus and Sonny Jr., even after they were no longer minors). In April 2004, the district court also appointed a guardian ad litem to represent the Southerland Children's interests. Southerland II, 521 F. Supp. 2d at 221 n.1. In the instant appeals, Southerland represents himself pro se, while Mr. O'Neill continues to represent the Southerland Children.
9. The amended complaint did not name as defendants or assert any claims against any of the other thirty-nine defendants that had been named by Southerland in his original pro se complaint. Additionally, although Ciara was identified as a plaintiff in the original complaint, she was dropped from the suit when the amended complaint was filed.
10. The amended complaint also joins nine John Doe defendants, including all persons who "supervis[ed], monitor[ed] and assist[ed] Woo in his actions with respect to the [Southerland] Children." Am. Compl. ¶39 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). The complaint asserts that "said Does are individually liable to [Southerland] for the deprivation of his constitutional rights and the constitutional rights of the [Southerland] Children as alleged herein." Id. In their briefing on appeal, the plaintiffs do not address these John Doe defendants. We conclude that the plaintiffs have abandoned their claims against the John Does. We note that even if the plaintiffs now sought to amend their complaint to identify the John Doe defendants, the claims against the newly named defendants would be time-barred. See Tapia-Ortiz v. Doe, 171 F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996).
11. In so doing, the district court relied upon our statement, when the case was previously on appeal, that "[t]he children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2 (citing Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)).
12. The district court later permitted the Southerland Children to assert their failure-to-train claim against the City not only with respect to the police, but also with respect to ACS. See Southerland II, 521 F. Supp. 2d at 235 n.34.
13. "Where another provision of the Constitution provides an explicit textual source of constitutional protection, a court must assess a plaintiff's claims under that explicit provision and not the more generalized notion of substantive due process." Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S. 286, 293 (1999)) (brackets and internal quotation marks omitted).
14. The defendants also argue, with respect to the probable cause determination, that irrespective of the requirements of New York Family Court Act §1034(2), Woo was required to visit the Southerland home under a provision of the New York Social Services Law that requires that, within twenty-four hours of receipt of a "report[] of suspected child abuse or maltreatment" as provided for under New York Social Services Law §424(1), ACS must undertake an investigation that includes "an evaluation of the environment of the child named in the report and any other children in the same home," id. §424(6)(a). However, considering that Woo had reason to know that Ciara, the child identified in the report, was not living at the Southerland home—and, indeed, reason to know that none of the children named in his application to the Family Court were living there—his reliance on this provision of the Social Services Law fails. If Ciara was not living "on premises" at the Southerland home, Woo was not entitled to enter the home to evaluate this "environment," nor to evaluate the other children living there.
15. In child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth Amendment purposes. See Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003); Tenenbaum, 193 F.3d at 602.
16. We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland 16 We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland
17. In Tenenbaum, a removal was carried out because the child had reported—albeit under questionable circumstances—that her father had sexually abused her. See Tenenbaum, 193 F.3d at 594. There was no doubt at the time that the possibility of sexual abuse was, as it always is, a serious concern. At issue was whether there was nonetheless time under the circumstances to secure a court order prior to effecting the removal without risking imminent danger to the child. See id. at 608 (Jacobs, J., dissenting) (describing majority opinion as holding that, while there was "exigency," there was still no "emergency," because there was time to obtain a court order). Tenenbaum represented a novel application of procedural due process law because of the majority's holding that regardless of the seriousness of the allegations, it was still necessary to obtain a court order if time permitted. Here, by contrast, we understand the plaintiffs to assert that the circumstances presented did not necessitate an inquiry into whether there was time to obtain a court order, because the conditions in the Southerland home were not grave enough to trigger that inquiry.
18. The district court correctly noted that there are material factual disputes concerning whether emergency circumstances existed warranting the immediate removal of the Southerland Children from their home. See Southerland II, 521 F. Supp. 2d at 234 n.29 & 235 n.31. But even where emergency circumstances warranting removal exist, "'the constitutional requirements of notice and opportunity to be heard are not eliminated but merely postponed.'" Kia P., 235 F.3d at 760 (quoting Duchesne, 566 F.2d at 826). Therefore, a plaintiff may have a viable claim for violation of procedural due process even where emergency circumstances existed at the time of removal, if the plaintiff does not receive a timely and adequate postdeprivation hearing. See id. at 760-61. In this case, as will be explained below, important factual questions remain concerning the post-removal judicial confirmation proceedings, if any, that took place in the days after the Southerland Children's removal from their home.
19. See Southerland Children's Br. at 23 ("The children were held by the defendants without court order from June 9 until June 13, 1997. ACS filed a petition in the Family Court on June 13, 1997, and apparently some kind of proceeding was held on that day, although there is no evidence of it in the record."); Appellees' Br. at 19 ("Plaintiff Southerland's children, the Court found, were removed from the home and held in ACS custody pending a timely post-deprivation hearing where a family court judge confirmed the removal."). The parties have failed to brief the issue despite our prior instruction that Southerland "be given an opportunity to prove…that the subsequent family court proceedings were insufficiently prompt to pass constitutional muster." Southerland I, 4 F. App'x at 36.
20. We reaffirmed this approach in Kia P., 235 F.3d at 757-58, where we also construed a child's claimed violation of substantive due process as instead arising under the Fourth Amendment. In Southerland I, we relied on Kia P. in stating that "[t]he [Southerland] children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2..
Original Resourse;
Thank you Expose Corrupt Courts
Due Process Protection May Be Returning to 2nd Circuit
Caseworker Denied Immunity for Removing Child From Home
The New York Law Journal - June 14, 2011
Southerland v. City of New York, 07-4449-cv (L)
Before: Kearse, Sack, and Hall, C.J.
07-4449-cv (L) - 06-14-2011 - Cite as: Southerland v. City of New York, 07-4449-cv (L), NYLJ 1202497024019, at *1 (2d CIR, Decided June 10, 2011) Before: Kearse, Sack, and Hall, C.J. - Decided: June 10, 2011 - ADDITIONAL INDEX NUMBERS: 07-4449-cv (L), 07-4450-cv (CON)
ATTORNEYS - Michael G. O'Neill, New York, N.Y., For Plaintiffs-Appellants Venus S., Sonny B.S. Jr., Nathaniel S., Emmanuel F., Kiam F., And Elizabeth F. - Sonny B. Southerland, Brooklyn, N.Y., Plaintiff-Appellant, Pro Se. - Julian L. Kalkstein, City of New York (Michael A. Cardozo, Corporation Counsel; Larry A. Sonnenshein, of Counsel), New York, N.Y., For Defendants-Appellees.
Consolidated appeals from a summary judgment entered by the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) in favor of, inter alios, the defendant Woo. The plaintiffs—a father and his children—bring various claims under 42 U.S.C. §1983 asserting that Woo, a children's services caseworker employed by the defendant City of New York, entered their home unlawfully and effected an unconstitutional removal of the children into state custody. The district court concluded that Woo was entitled to qualified immunity with respect to all of the claims against him. We disagree. As to each claim that has been preserved for appeal:
Vacated and remanded. ROBERT D. SACK, C.J:
This lawsuit involves a man and a woman—the plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party Diane Manning—two groups of children, and a caseworker's apparent confusion between the two groups. Plaintiff Ciara Manning is the daughter of Southerland and Diane Manning. Ciara was supposed to be living with Southerland at the time in question, but in fact had left to live with a friend. In addition to Ciara, plaintiff Southerland fathered, by one or more women other than Diane Manning, six other children: the plaintiffs Venus Southerland, Sonny B. Southerland Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix (together, the "Southerland Children"). At the time of the principal events in question, the Southerland Children, unlike Ciara, were living with their father. Diane Manning also allegedly bore, by one or more men other than Southerland, six children other than Ciara: Eric Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, Michael Manning, and Miracle Manning (together, the "Manning Children"). They lived with Diane and, like her, are not parties to this lawsuit. In May 1997, the defendant Timothy Woo, a caseworker in the Brooklyn Field Office of the New York City Administration for Children's Services ("ACS"), was assigned to investigate a report by a school counselor about then-sixteen-year-old Ciara Manning. School staff had thought Ciara to be acting strangely at school. After being unable, despite repeated attempts, to gain entry to the Southerland home to investigate the report, Woo sought and obtained from the Kings County Family Court an order authorizing entry into the apartment. Woo's application to obtain that order contained several misstatements of fact, which suggested Woo's possible confusion about which of the children resided with Southerland. Under the authority of the Family Court's order, Woo then entered the Southerland apartment. Ciara was not there; some of Southerland's other children who lived with him were. Based on what Woo perceived to be the poor condition of the home and of the Southerland Children, and his other observations from the investigation undertaken to that date, Woo and his supervisor decided to carry out an immediate removal of the children into ACS custody. Southerland and the Southerland Children brought this action based on Woo's entry into the apartment and removal of the children. They claim that Woo violated their Fourth Amendment 1 rights to be free from unreasonable searches of their home, and that the manner in which the Southerland Children were removed violated their procedural due process rights under the Fourteenth Amendment. Southerland also claims that the removal of the Southerland Children from his home violated his substantive due process rights under the
Fourteenth Amendment. Finally, the Southerland Children claim that their removal violated their Fourth Amendment rights to be free from unreasonable seizure. The district court (Charles P. Sifton, Judge) 2 concluded, inter alia, that Woo was entitled to qualified immunity with respect to all of the claims against him and granted summary judgment in his favor. We disagree with those conclusions and therefore vacate the district court's judgment as to those claims that have been pursued on appeal and remand the matter for further proceedings.
BACKGROUND
The relevant facts are rehearsed in detail in the district court's opinion. See Southerland v. City of N.Y., 521 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II"). They are set forth here only insofar as we think it necessary for the reader to understand our resolution of these appeals. Where the facts are disputed, we construe the evidence in the light most favorable to the plaintiffs, who are the nonmoving parties. See, e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). We also draw all reasonable factual inferences in the plaintiffs' favor. See, e.g., id.
The ACS Investigation
On May 29, 1997, a school guidance counselor reported to the New York State Central Registry Child Abuse Hotline that one of the school's students, Ciara Manning, the then-sixteen, year-old daughter of Diane Manning and plaintiff Southerland, was "emotionally unstable." The counselor further reported:
Fa[ther] fails to follow through w[ith] mental health referrals. On 5/12/97 the ch[ild] swallowed a can of paint. F[ather] failed to take the ch[ild] for medical attention. Fa[ther] is unable to control or supervise the ch[ild]. She may be staying out of the home in an i[m]proper enviro[n]ment. Intake Report at 3, Office of Children and Family Services, Child Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the Declaration of Janice Casey Silverberg (Dkt. No. 168) ("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). The Intake Report was transmitted to the Brooklyn Field Office of the ACS. There, Fritz Balan, a supervisor, assigned the case to defendant Timothy Woo, an ACS caseworker, for investigation. Woo, who was required by New York law to begin his investigation within 24 hours, did so that day. He first examined the files of a case pending in that ACS office regarding Ciara's mother, Diane Manning. Material in those files disclosed that Ciara had several younger half-also indicated that Ciara lived with her father, Southerland, at a Brooklyn address, although the plaintiffs correctly note the absence of any evidence as to the source of that information and the time it was received. It is not clear from the record whether Woo was aware that the children referenced in Diane Manning's case file were not related to Southerland and that they did not live with him. See Southerland II, 521 F. Supp. 2d at 222, 224 & n.8.
Woo also contacted the school guidance counselor who had called the child-abuse hotline. According to Woo, the counselor told him that while at school, Ciara had swallowed non-toxic paint, expressed thoughts of suicide, and was generally behaving aggressively and "acting out." Declaration of Timothy Woo ¶10 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). Woo's handwritten notes from the conversation indicate that the counselor told Woo that "father [i.e., Southerland] doesn't approve of the place [where Ciara] is staying." Notes of Timothy Woo at 1, Ex. A to the Declaration of Michael G. O'Neill (Dkt. No. 182) ("O'Neill Decl."), Southerland v. City of N.Y., No. 99- cv-3329 (E.D.N.Y. Dec. 28, 2006). It is disputed whether the counselor also told Woo that Southerland had been unresponsive to the school's stated concerns about Ciara's behavior. Later that day, Woo attempted to visit Southerland's apartment in Brooklyn where, for reasons that are not clear from the record, Woo thought Ciara was staying. When no one answered the door, Woo left a note containing his contact information. The following day, May 30, Southerland telephoned Woo. During the course of their conversation, Southerland described Ciara as a runaway who would not obey him. Southerland suggested that he visit the ACS office to discuss the matter with Woo further. The plaintiffs dispute Woo's assertion that during the phone conversation, Southerland indicated that he would not permit Woo to visit Southerland's apartment. Southerland contends that, although he did question why Woo needed to visit the apartment since Ciara did not live there, Southerland nonetheless indicated that he would be willing to make an appointment for Woo to conduct a home visit if Woo insisted. Southerland visited the ACS office and met with Woo later that day. According to Southerland's deposition testimony, he told Woo that Ciara had run away and that he had obtained several "Persons in Need of Supervision" ("PINS") warrants against her. Woo's case notes indicate that Woo asked Southerland why he had not sought medical attention for Ciara after the paint-swallowing incident. Southerland did not answer the question.3 See Progress Notes of T. Woo at 1 ("Progress Notes"), Ex. B to O'Neill Decl. Southerland told Woo and Balan, Woo's supervisor, that Ciara did not need psychiatric help, and that she "'was only acting the way she did to get attention.'" Southerland II, 521 F. Supp. 2d at 223 (quoting Woo Decl. ¶10); see also Declaration of Fritz Balan ¶7 (Dkt. No. 170) ("Balan Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). According to Woo, he explained to Southerland that various services were available through ACS to assist him and his children, including counseling and help with obtaining food, furniture, and clothing. Southerland declined. According to Southerland, however, no such assistance was ever offered. When Woo said he would need to make a home visit, Southerland replied that it would be "no problem" as long as he was notified in advance. Southerland II, 521 F. Supp. 2d at 223; see also Deposition of Sonny B. Southerland at 207 ("Southerland Dep."), Ex. F to O'Neill Decl. Southerland asserts that Woo stated he would call him to arrange the visit, but that Woo never made such a call. On June 2, 1997, Woo made a second attempt to examine the Southerland apartment. A woman whose identity was unknown to Woo answered the door. She said that Southerland was not at home. Woo left. The following day, June 3, Woo again went to the apartment. He heard noises inside, but no one answered the door. Again, he left. The next day, June 4, Woo went to the apartment for a fourth time. He waited in the hallway for several minutes. Southerland emerged accompanied by five school-aged children: Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down their names in his case notes. Southerland told Woo that he did not have time to talk because he was taking the children to school. Woo gave Southerland an ACS business card and told him that if he continued to be uncooperative, ACS would seek court action. Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see also Progress Notes at 2.
The Removal of the Southerland Children
On June 6, 1997, at the direction of supervisor Balan, Woo applied to the Kings County Family Court for an order to enter the Southerland apartment pursuant to section 1034(2) of the New York Family Court Act. It is ACS policy to investigate not only the status of the child named in a report of suspected abuse or maltreatment of the type referred to in section 1034(2), but also that of any other children residing in the same home. Woo listed Ciara on the application. Instead of including the names of the children he had met leaving Southerland's home on June 4, however, he listed the other children of Ciara's mother Diane—the Manning Children: Eric Anderson, Richy Anderson, Felicia Anderson, Michael Manning, Miracle Manning, and Erica Anderson—whose names he apparently had obtained from the Diane Manning case files he had reviewed at ACS's Brooklyn Field Office. 4 The Family Court issued an "Order Authorizing Entry" into the Southerland apartment the same day, June 6. See Southerland II, 521 F. Supp. 2d at 224. Three days later, on the evening of June 9, 1997, pursuant to the Order Authorizing Entry, Woo and another caseworker entered the Southerland apartment with the assistance of officers from the New York City Police Department. Southerland and the Southerland Children were present inside the home. Woo Decl. ¶¶13-15, 19. The district court described what happened next, from Woo's perspective:
Woo determined that there were six children between the ages of three and nine residing in the apartment. He listed their names [correctly] as Venus, Sonny Jr., Nathaniel, Emmanuel, Kiam, and Elizabeth Felix. Soon after beginning his evaluation of the home, Woo called his supervisor [Balan] on his cell phone, described his observations, and answered his supervisor's questions. Woo reported that the four boys slept on the floor in one bedroom and the two girls slept on a cot in another bedroom. The children appeared as though they had not been bathed in days and their clothing was malodorous. In the refrigerator, Woo found only beer, a fruit drink, and English muffins. Woo did not examine the contents of the kitchen cupboards. The other caseworker observed that one child, Venus, was limping because of a foot injury. The child stated that she had stepped on a nail. The caseworker concluded that Southerland had not sought medical attention for her. Woo reported that the only light source in the bedroom area was from a blank television screen. Woo observed an electric lamp on the floor, without a shade, connected to an outlet in the living room by means of several extension cords along the floor. Woo reported that another room contained stacks of electronic equipment. Woo and his supervisor concluded that the children's safety was threatened, and Balan directed Woo to remove the children from the home. Id. at 224-25 (footnotes omitted).5
As the district court also observed, the plaintiffs—relying primarily on later deposition testimony by Southerland—offer a starkly different description of the conditions in the Southerland home at the time. According to Southerland's testimony, the apartment did not lack proper bedding; the boys had a bunk bed in their room, although they preferred to sleep on yellow foam sleeping pads on the floor. Id. at 225 n.10. The children were not dirty; Southerland testified that he laundered the children's clothing about once a week and bathed the children daily. Id. at 225 n.11. There was food in the refrigerator, and it is also a reasonable inference from Southerland's testimony that there was food in the cupboards (which Woo did not examine), because Southerland testified that groceries for the household were purchased on a regular basis. Id. at 225 n.12. The household did not lack lighting; Southerland testified that he had a lamp plugged into a wall in each room. Id. at 225 n.14. Finally, although Southerland does not dispute that Venus had a foot injury, the plaintiffs stress Woo's concession that he did not personally observe the injury during his assessment of the home.6 Id. at 225 n.13.
In the early hours of June 10, 1997, at Balan's direction, Woo removed the Southerland Children from the Southerland home. Woo took them to the ACS pre-placement emergency shelter and arranged for emergency foster care. Id. at 226. At some point—it is not clear exactly when—Woo interviewed Ciara Manning, whom he had found living at the home of her friend. Ciara told Woo that her father had sexually abused her and threatened to kill her if she told anyone about it—allegations she later recanted. 7 The Southerland Children also complained of various kinds of abuse and mistreatment at the hands of Southerland and his companion, Vendetta Jones. These allegations concerning Ciara and the Southerland Children were included in a verified petition filed by ACS with the Family Court on June 13, 1997, and amended on June 27, 1997. The petitions commenced child-protective proceedings under Article 10 of the New York Family Court Act, §§1011 et seq., through which ACS sought to have the Southerland Children adjudicated as abused and neglected. On July 1, 1998, more than a year after the children were removed from the Southerland home, the Kings County Family Court concluded after a five-day trial that Southerland had engaged in excessive corporal punishment of the Southerland Children and that he had abused and neglected them. The court also concluded that he had sexually abused his daughter Ciara. The court ordered that the Southerland Children remain in foster care, where they had resided since the June 1997 removal. The New York Appellate Division, Second Department, affirmed these orders, see In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717 (2d Dep't 2000), and the New York Court of Appeals denied leave to appeal, see In re Ciara M., 95 N.Y.2d 767, 740 N.E.2d 653, 717 N.Y.S.2d 547 (2000). In March 2004, nearly seven years after their removal from the Southerland home, Sonny Jr. and Venus were permitted to return to live with Southerland. Some seven months thereafter, Nathaniel and Emmanuel were discharged from the juvenile justice system by the Office of Children and Family Services and also returned to the Southerland home. As far as we can determine from the record, neither Kiam nor Elizabeth ever returned to live with Southerland.
However strongly the facts of mistreatment found by the Family Court at trial may indicate that Woo's perceptions about the dangers to the Southerland Children of their remaining with Southerland were correct, virtually none of this information was in Woo's possession when he effected the June 9, 1997, entry and removal, as the district court correctly observed. See Southerland II, 521 F. Supp. 2d at 226 n.19. These subsequently determined facts therefore do not bear upon our consideration of whether Woo's actions in effecting the removal were constitutional. See id.
Prior Federal Court Proceedings
In June 1999, some two years after the removal and while the Southerland Children remained in foster care, Southerland, on behalf of himself and his children, filed a pro se complaint in the United States District Court for the Eastern District of New York against more than forty defendants for the allegedly wrongful removal of the Southerland Children from his home. On February 1, 2000, the district court (Charles P. Sifton, Judge) granted the defendants' motion to dismiss on grounds that included failure to state a claim, failure to plead certain matters with particularity, lack of subject-matter jurisdiction, and Eleventh Amendment immunity. See Opinion & Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Feb. 2, 2000). Southerland appealed. We affirmed in part, reversed in part, and remanded the action. We ruled, inter alia, that the district court had erred in dismissing Southerland's claims under 42 U.S.C. §1983 relating to the seizure and removal of the Southerland Children. See Southerland v. Giuliani, 4 F. App'x 33, 36 (2d Cir. 2001) (summary order) ("Southerland I"). We concluded that the pro se complaint stated valid claims for violations of both the substantive and procedural components of the Fourteenth Amendment's Due Process Clause. See id. at 36-37. We "emphasize[d] that our holding [wa]s limited to the claims made directly by Sonny Southerland," noting that "[a]lthough the children probably have similar claims, we have held that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Id. at 37 (citation and internal quotation marks omitted). We therefore "le[ft] it to the district court upon remand to determine whether Southerland should be given a chance to hire a lawyer for his children or to seek to have one appointed for them." Id. On remand, the district court appointed counsel to represent both Southerland and the Southerland Children.8 Southerland II, 521 F. Supp. 2d at 227. In November 2002, through counsel, Southerland and the Southerland Children jointly filed an amended complaint, id. at 221 & n.1, asserting nine claims under 42 U.S.C. §1983 against Woo and the City of New York, id. at 221 n.2.9
In the amended complaint, Southerland asserts four separate claims against Woo.10 First, Southerland alleges an unlawful-search claim, asserting that Woo's entry into his home "without privilege, cause or justification" violated the Fourth Amendment. Am. Compl. ¶¶40-41 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). Southerland asserts a second Fourth Amendment unlawful-search claim for Woo's remaining in his home even after discovering that the children listed on the Order Authorizing Entry were not there. Third, Southerland asserts a Fourteenth Amendment procedural due process claim for removal of the Southerland Children from his home without a court order and in the absence of an immediate threat of harm to their lives or health. Finally, Southerland alleges a substantive due process claim, also under the Fourteenth Amendment, for Woo's removal of the Southerland Children absent a reasonable basis for doing so. The amended complaint also interposes various claims on behalf of the Southerland Children. First, the Children assert the same procedural due process claim under the Fourteenth Amendment as does Southerland. Second, they assert a substantive due process claim under the Fourteenth Amendment. The district court recharacterized the latter claim as arising under the Fourth Amendment's guarantee of protection against unlawful seizure. 11 See Southerland II, 521 F. Supp. 2d at 230 n.24. Finally, the district court construed the amended complaint as asserting on behalf of the Children the same two Fourth Amendment unlawful-search claims as were asserted by Southerland. Southerland and the Southerland Children also bring several claims against the City of New York. Southerland asserts that the City is liable under 42 U.S.C. §1983 for the removal of the Southerland Children insofar as that removal was conducted pursuant to two alleged official City policies: to remove children without a reasonable basis, and to remove children without a court order despite the absence of any immediate threat of harm to their lives or health. Southerland and the Southerland Children also allege that high-ranking policymakers within the City's police department knew or should have known that the City's failure to train police officers accompanying ACS employees on home visits and investigations would deprive New York City residents of their constitutional rights.12
On the defendants' motion for summary judgment, the district court concluded that Woo was entitled to qualified immunity as to all of the claims against him. With respect to the Fourth Amendment unlawful-search claims, the court concluded that the false and misleading statements made by Woo in his application for the Order Authorizing Entry did not strip him of qualified immunity because the plaintiffs could not show that these statements were necessary to the finding of probable cause to enter the home. Southerland II, 521 F. Supp. 2d at 230-31. The court decided that qualified immunity was warranted because "a corrected affidavit specifying all of the information known to Woo establishes an objective basis that would have supported a reasonable caseworker's belief that probable cause existed." Id. at 231 (brackets, citation, and internal quotation marks omitted). With respect to the Southerland Children's Fourth Amendment unlawful-seizure claim, and the procedural due process claims brought by both sets of plaintiffs, the district court decided that qualified immunity shielded Woo from liability because his actions pre-dated the clear establishment of law in this context, which in its view did not occur until this Court's decision in Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000). See Southerland II, 521 F. Supp. 2d at 231-32. Lastly, with regard to Southerland's substantive due process claim, the district court concluded that Woo was entitled to qualified immunity because "it was objectively reasonable for [him] to conclude that Southerland's substantive due process rights were not violated" when Woo removed the Southerland Children from the home, because "[b]rief removals of children from their parents generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal." Id. at 32
(brackets and internal quotation marks omitted).
Notwithstanding the district court's conclusion that Woo was entitled to qualified immunity as to every claim asserted against him, the court proceeded to consider, in the alternative, the underlying merits of the plaintiffs' various claims. The court decided that even in the absence of immunity, Woo would be entitled to summary judgment with respect to the plaintiffs' Fourth Amendment unlawful-search claims and Southerland's substantive due process claim. Specifically, with respect to the Fourth Amendment unlawful-search claims, the district court decided that "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Id. at 233. With respect to Southerland's substantive due process claim, the court concluded that "no reasonable juror could find that the removal of the children from their home in order to verify that they had not been neglected or abused was so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Id. at 234-35 (citation omitted). The district court concluded that the City was also entitled to summary judgment on all of the claims against it. See Southerland II, 521 F. Supp. 2d at 235-39. The plaintiffs do not appeal from that portion of the judgment and therefore have abandoned their claims against the City. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). The district court determined, however, that without qualified immunity protection, summary judgment would not be appropriate on the merits of the procedural due process claims brought by both Southerland and the Southerland Children because, "[a]lthough defendants argue that the 'totality of the circumstances' Woo encountered in the Southerland home required an ex parte removal, they fail to explain why there was not sufficient time for Woo to seek a court order removing the children." See Southerland II, 521 F. Supp. 2d at 235 n.31. Nor would summary judgment be appropriate on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim, the district court said, because the defendants could not explain "why the particular circumstances that Woo encountered in the Southerland home established that there was imminent danger to the children's life or limb requiring removal in the absence of a court order." Id. at 234 n.29. Both Southerland and the Southerland Children now appeal from the dismissal of each of their claims against Woo, except for one Fourth Amendment claim brought by all plaintiffs. The plaintiffs have not appealed the district court's adverse ruling as to their claim that Woo violated the Fourth Amendment by remaining in their home even after determining that the children listed on the Order Authorizing Entry were not present. We vacate and remand with respect to each of the plaintiffs' claims that have been preserved for appeal.
DISCUSSION - I. Standard of Review
We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving part[ies] and drawing all reasonable inferences in [their] favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). "[S]ummary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P. 56(a).
II. Qualified Immunity - Qualified immunity shields public officials from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir. 2003) (internal quotation marks omitted). An officer is also entitled to qualified immunity "if officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context." Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d Cir. 2010) (internal quotation marks omitted).
III. Overview of Constitutional Law in the Context of the State's Removal of Children from Their Home - As we observed in a decision post-dating the events at issue in these appeals, "[p]arents…have a constitutionally protected liberty interest in the care, custody and management of their children." Tenenbaum, 193 F.3d at 593; see also Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning the "fundamental right of parents to make decisions concerning the care, custody, and control of their children"). "[C]hildren have a parallel constitutionally protected liberty interest in not being dislocated from the emotional attachments that derive from the intimacy of daily family association." Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) ("Th[e] right to the preservation of family integrity encompasses the reciprocal rights of both parent and children."). The state's removal of a child from his or her parent may give rise to a variety of cognizable constitutional claims. First, both the parents and the children may have a cause of action for violation of the Fourteenth Amendment under a theory of denial of procedural due process. The Fourteenth Amendment imposes a requirement that except in emergency circumstances, judicial process must be accorded both parent and child before removal of the child from his or her parent's custody may be effected. See, e.g., Kia P., 235 F.3d at 759-60; Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26. Both Southerland and the Southerland Children have asserted such a procedural due process claim against Woo in this case. Second, a parent may also bring suit under a theory of violation of his or her right to substantive due process. Southerland does so here. Parents have a "substantive right under the Due Process Clause to remain together [with their children] without the coercive interference of the awesome power of the state." Tenenbaum, 193 F.3d at 600 (internal quotation marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d 129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58. Such a claim can only be sustained if the removal of the child "would have been prohibited by the Constitution even had the [parents] been given all the procedural protections to which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis in original). In other words, while a procedural due process claim challenges the procedure by which a removal is effected, a substantive due process claim challenges the "fact of [the] removal" itself. Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 2000). For such claims brought by children, however, we have concluded that the Constitution provides an alternative, more specific source of protection.13 When a child is taken into state custody, his or her person is "seized" for Fourth Amendment purposes. The child may therefore assert a claim under the Fourth Amendment that the seizure of his or her person was unreasonable. See Tenenbaum, 193 F.3d at 602. Such a claim belongs only to the child, not to the parent, although a parent has standing to assert it on the child's behalf. Id. at 601 n.13. In accordance with our order in Southerland I, 4 F. App'x at 37 n.2, the district court determined that the Southerland Children's substantive due process claim should be construed instead as a Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 230 n.24. Finally, depending on the circumstances in which a removal occurs, other Fourth Amendment claims might also be viable. Here, Southerland and the Southerland Children asserted two Fourth Amendment claims for unlawful search: one claim relating to Woo's entry into the Southerland home, and one (now abandoned) claim relating to Woo's remaining in the home even after determining that the Manning Children were not present. Both claims were based on an allegation that Woo made false statements to the Family Court in order to obtain the Order Authorizing Entry, and therefore that there was no probable cause to carry out a search of the Southerland apartment.
IV. The Fourth Amendment Unlawful-Search Claims - The district court determined that summary judgment was warranted on the plaintiffs' Fourth Amendment unlawful-search claims on two separate grounds. First, the district court concluded that Woo was entitled to qualified immunity under the "corrected affidavit" doctrine. See Southerland II, 521 F. Supp. 2d at 230-31. Second, the district court decided that Woo was entitled to summary judgment on the merits because no reasonable juror could find that Woo had knowingly made false or misleading statements in seeking to obtain the Order Authorizing Entry. Id. at 233.
We disagree with both conclusions.
A. The Corrected-Affidavit Doctrine - We begin with the plaintiffs' argument that the district court erred in its application of the corrected-affidavit doctrine, under which a defendant who makes erroneous statements of fact in a search-warrant affidavit is nonetheless entitled to qualified immunity unless the false statements in the affidavit were "necessary to the finding of probable cause." Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) (internal quotation marks omitted). In order to determine whether false statements were "necessary to the finding of probable cause," the court must "put aside allegedly false material, supply any omitted information, and then determine whether the contents of the 'corrected affidavit' would have supported a finding of probable cause." Id. (citation and internal quotation marks omitted). In applying the corrected-affidavit doctrine, qualified immunity is warranted only if, after correcting for the false or misleading statements, the affidavit accompanying the warrant was sufficient "to support a reasonable officer's belief that probable cause existed." Id. (internal quotation marks omitted). The district court, which "assum[ed] for purposes of the qualified immunity defense that Woo made false and misleading statements" in applying for the Order Authorizing Entry, Southerland II, 521 F. Supp. 2d at 230, correctly noted that the plaintiffs "would still have to demonstrate that those statements were necessary to the finding of probable cause for qualified immunity not to attach to Woo's actions," id. at 230-31 (citation and internal quotation marks omitted). The court determined that Woo was entitled to qualified immunity based on its conclusion that a corrected affidavit, containing all of the information available to Woo at the time the affidavit was made, would have supported a finding of probable cause to enter the home. Id. at 231.
We disagree. Section 1034(2) of the New York State Family Court Act, which provides the evidentiary standard for a showing of probable cause sufficient for the issuance of an investigative order, governed Woo's application to obtain the Order Authorizing Entry. The district court, in its September 2007 decision, cited the statute as it had been amended in January 2007. See id. at 224 n.7. But the version that governed at the time of Woo's application was materially different. Under the version of the statute that applied at the time of Woo's actions, the affiant was required to demonstrate "probable cause to believe that an abused or neglected child may be found on premises," N.Y. Fam. Ct. Act §1034(2) (McKinney's 1997) (emphasis added), presumably meaning the "premises" identified in the application submitted to the Family Court. The district court should have engaged in its corrected-affidavit analysis with reference to the earlier law. The children that Woo listed on his application for the Order Authorizing Entry—the Manning Children and Ciara—were children who did not reside "on premises" in the Southerland home. The district court concluded that "a properly made application would still list Ciara Manning on the application because Southerland is her father and was the parent legally responsible for her care, even if she had run away." Southerland II, 521 F. Supp. 2d at 231. That may be relevant to an inquiry under the statute as amended in 2007, but it is not relevant to the appropriate question under the applicable version of the law: whether there existed probable cause for Woo to believe that Ciara Manning could be found "on premises" at the Southerland home. In fact, she, like the Manning Children, was not "on premises." And Woo had reason to know that she was not—from the information in the initial Intake Report transmitted to Woo; from the guidance counselor's statement to Woo that Southerland did not approve of the place where Ciara was staying; and from Southerland's own statements during his May 30 telephone conversation with Woo that Ciara was a runaway and did not live at his home.14 The plaintiff children point out that there were other deficiencies in the district court's corrected-affidavit analysis that undermine the court's conclusion that the information known to Woo at the time he applied for the Order Authorizing Entry would have supported a finding of probable cause. For example, Woo's application stated that Ciara "tried to kill herself by swallowing non-toxic paint," and that Southerland "did not take [Ciara] to a medical doctor and refused to take [Ciara] for psychiatric evaluation." Application for Authorization to Enter Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C to Silverberg Decl. The plaintiff children argue that the application omitted several relevant facts that, according to Southerland's version of events, were known to Woo at that time: that the paint-swallowing incident took place at school, not at home; that Southerland was willing to obtain treatment for his daughter, but had trouble doing so, precisely because she was not living in his home; and that Southerland had attempted to assert control over his daughter by applying for PINS warrants. Southerland Children's Br. at 30-31; see also id. at 28-36 (disputing additional assertions of fact, such as whether the swallowing of paint indeed was a suicide attempt). As the plaintiff children put it: Woo's omission of the fact that the incident took place at school allowed the court to assume that the suicide attempt took place in Southerland's residence. The overall picture painted by Woo is that Southerland's daughter attempted to kill herself, that Southerland did nothing about it, and refused to let others do something about it as well. By omitting the fact that the daughter was not even living at the Southerland apartment, Woo gave the family court the impression that it was necessary to allow Woo to enter the apartment in order to render assistance to a suicidal teenager in the home of a parent who could not be bothered to help her and who prevented the efforts of ACS to provide help to her. Id. at 31-32. The district court included much of this information in its recitation of facts, Southerland II, 521 F. Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these considerations into its application of the corrected-affidavit doctrine. We have observed that the materiality of a misrepresentation or omission in an application for a search warrant is a mixed question of law and fact.15 Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994). "The legal component depends on whether the information is relevant to the probable cause determination under controlling substantive law." Id. "[T]he weight that a neutral magistrate would likely have given such information," however, is a question for the factfinder. Id. In such circumstances, a court may grant summary judgment to a defendant based on qualified immunity only where "the evidence, viewed in the light most favorable to the plaintiffs, discloses no genuine dispute that a magistrate would have issued the warrant on the basis of the corrected affidavits." Walczyk v. Rio, 496 F.3d 139, 158 (2d Cir. 2007) (emphasis, citation, and internal quotation marks omitted). We cannot conclude as a matter of law—although a trier of fact might so conclude after an evidentiary hearing—that the Family Court, in deciding whether there was "probable cause to believe that an abused or neglected child may [have] be[en] found [in the Southerland home]," N.Y. Fam. Ct. Act §1034(2), would have issued the order had a corrected affidavit been presented to it.
B. Knowing or Reckless Misstatements of Fact - The district court also concluded that even if the corrected-affidavit doctrine did not apply, summary judgment was appropriate because, on the merits, "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Southerland II, 521 F. Supp. 2d at 233. Based on that premise, the district court concluded that "the [O]rder [Authorizing Entry] was issued with probable cause and Woo's entry into and search of Southerland's home did not violate plaintiffs' Fourth Amendment rights." Id. We disagree. If the district court were correct that Woo did not knowingly make false and misleading statements, that would entitle Woo to qualified immunity, but would not necessarily render his underlying conduct lawful. When a person alleges a Fourth Amendment violation arising from a search executed by a state official, "the issuance of a search warrant…creates a presumption that it was objectively reasonable for the [defendant] to believe that the search was supported by probable cause" so as to render the defendant qualifiedly immune from liability. Martinez, 115 F.3d at 115. To defeat the presumption of reasonableness, a plaintiff must make "a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause" for which the warrant was issued. Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal quotation marks omitted), cert. denied, 505 U.S. 1221 (1992). We need not consider further whether the district court erred by confusing the qualified immunity and merits analyses, however, because we also do not agree with the district court's premise that no reasonable juror could find that Woo did not knowingly or recklessly make false statements. We think that several disputed facts, taken together and viewed in the light most favorable to the plaintiffs, would permit—though not require—a reasonable factfinder to find otherwise.
First, substantial evidence, viewed in the light most favorable to the plaintiffs, suggests that Woo had reason to know that Ciara was not residing at the Southerland home when he applied for the Order Authorizing Entry. For example, the May 29 Intake Report informed ACS that Ciara "may be staying out of the home in an i[m]proper enviro[n]ment." Intake Report at 3. And Southerland told Woo on May 30 that Ciara was a runaway and that he had taken out PINS warrants against her. Southerland II, 521 F. Supp. 2d at 223. A reasonable juror could find that Woo's application to the Family Court on June 6 was knowingly or recklessly misleading in stating: "I have reasonable cause to believe that the above named children [including Ciara] may be found at the above premises [the Southerland home]." June 6 Application at 1. Second, evidence in the record, again viewed in the light most favorable to the plaintiffs, would permit a reasonable juror to conclude that Woo had knowingly or recklessly misrepresented the nature of the paint-swallowing incident in his application. About one week before June 6, Woo learned from a school counselor that Ciara had "swallowed non-toxic paint at school" and had been "acting out and expressing thoughts of suicide." Woo Decl. ¶6. Although the counselor informed Woo that Southerland had failed to seek medical treatment for Ciara, see id., Southerland later explained to Woo that the reason he had not taken Ciara for treatment was that she did not reside with Southerland and did not listen to him, id. ¶8. Yet Woo's application represented to the Family Court that Ciara "tried to kill herself by swallowing non-toxic paint" and that Southerland "did not take [her] to a medical doctor and refused to take [her] for psychiatric evaluation." June 6 Application at 1. A reasonable trier of fact might find the foregoing statements to be materially misleading insofar as they characterize Ciara's paint-swallowing as a suicide attempt; fail to note that the incident occurred at school rather than in Southerland's home; and omit the fact that Ciara may have been living outside the home and free from Southerland's control. Finally, the district court overlooked the parties' dispute concerning Woo's knowledge about which children resided in the Southerland apartment. The district court stated that Woo "had reason to believe that the Manning children would be found in the Southerland apartment because of a separate investigation of the Manning children and his personal observation that there were other children in the Southerland home who had not yet been positively identified." Southerland II, 521 F. Supp. 2d at 233. But, as the district court opinion elsewhere observes, on June 4, 1997—two days before he applied for the Order Authorizing Entry—Woo met the Southerland Children emerging from the Southerland apartment and wrote down their names. See id. at 223-24 & n.6. We think that there is a triable issue of fact as to whether Woo in fact believed, as he wrote in his application to the Family Court, that it was the Manning Children and not the Southerland Children who were in the Southerland home, or whether he recklessly confused or knowingly conflated the two.
Although these alleged misrepresentations may turn out to be no more than accidental misstatements made in haste, the plaintiffs have nonetheless made a "substantial preliminary showing" that Woo knowingly or recklessly made false statements in his application for the Order Authorizing Entry. Golino, 950 F.2d at 870 (internal quotation marks omitted). This showing rebuts the presumption of reasonableness that would otherwise apply to shield Woo with qualified immunity at the summary judgment stage. In sum, because we conclude that genuine issues of material fact exist, both as to whether Woo knowingly or recklessly made false statements in his affidavit to the Family Court and as to whether such false statements were necessary to the court's finding of probable cause, we vacate the district court's grant of summary judgment on the plaintiffs' Fourth Amendment unlawful-search claims. Once again, we note that a trier of fact might, after review of the evidence, conclude that the errors in the June 6 Application were either accidental or immaterial. We vacate the grant of summary judgment because we cannot reach that conclusion ourselves on the current record as a matter of law.
V. The Plaintiffs' Procedural Due Process Claims - Southerland and the Southerland Children each assert a procedural due process claim against Woo. The district court held that Woo was entitled to qualified immunity on these claims. We disagree.
A. Procedural Due Process in the Child-Removal Context - "'As a general rule…before parents may be deprived of the care, custody, or management of their children without their consent, due process—ordinarily a court proceeding resulting in an order permitting removal—must be accorded to them.'" Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 593). "However, 'in emergency circumstances, a child may be taken into custody by a responsible State official without court authorization or parental consent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). "'If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). To prevail, "[t]he government must offer 'objectively reasonable' evidence that harm is imminent." Id. Although we have not exhaustively set forth the types of factual circumstances that constitute imminent danger justifying emergency removal as a matter of federal constitutional law, we have concluded that these circumstances include "the peril of sexual abuse," id., the "risk that children will be 'left bereft of care and supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991)), and "immediate threat[s] to the safety of the child," Hurlman, 927 F.2d at 80 (internal quotation marks omitted); see also N.Y. Fam. Ct. Act §1024(a) (defining emergency circumstances, for the purposes of state law, as "circumstance[s]" wherein a child's remaining in the parent's care and custody "presents an imminent danger to the child's life or health").
B. Analysis - The district court correctly concluded that summary judgment was not appropriate on the underlying merits of the plaintiffs' procedural due process claims because Woo did not demonstrate, as a matter of law, that he did not have time to obtain a court order authorizing the removal of the Southerland Children before taking that act. See Southerland II, 521 F. Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171). The court nonetheless granted summary judgment on qualified immunity grounds, concluding that "the law concerning procedural due process rights in the context of child removals was not clearly defined at the time of the events in question." Id. at 232. But in Hurlman, we recognized that officials may remove a child from the custody of the parent without consent or a prior court order only in "emergency" circumstances. Emergency circumstances mean circumstances in which the child is immediately threatened with harm, for example, where there exists an immediate threat to the safety of the child, 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, 927 F.2d at 80 (citations and internal quotation marks omitted); see also Robison v. Via, 821 F.2d 913, 921-22 (2d Cir. 1987) (describing the "'emergency' circumstances" exception and collecting cases).16 It thus was clearly established at the time of the Southerland Children's removal that state officials could not remove a child from the custody of a parent without either consent or a prior court order unless "'emergency' circumstances" existed. Hurlman, 927 F.2d at 80; see also Cecere v. City of N.Y., 967 F.2d 826, 829-30 (2d Cir. 1992) (setting forth "clearly established" procedural due process principles); see also Velez v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) (explaining the principles). In concluding that the law of procedural due process was not clearly established in the child-removal context in 1997, the district court in the case at bar relied primarily on our decision in Tenenbaum. There we held as a matter of first impression that "where there is reasonable time consistent with the safety of the child to obtain a judicial order, the 'emergency' removal of a child is unwarranted." Tenenbaum, 193 F.3d at 596. Because this principle was not clearly established in 1990—the year the underlying conduct at issue in Tenenbaum took place—we affirmed the district court's decision in that case that the defendants were entitled to qualified immunity. We also made clear, however, that even in 1990, "it was established as a general matter…that 'except where emergency circumstances exist' a parent can 'not be deprived' of the custody of his or her child 'without due process, generally in the form of a predeprivation hearing.'" Id. at 596 (quoting Hurlman, 927 F.2d at 79). In the present case, the plaintiffs assert "not solely that defendants had sufficient time to obtain a court order, but that the circumstances in which Woo found the children did not warrant their removal at all, whether evaluated by pre—or post—Tenenbaum standards." Southerland Children's Br. at 39.17 We understand the plaintiffs' contention to be that "emergency circumstances" warranting removal simply did not exist. The district court did not decide as a matter of law that emergency circumstances existed in the Southerland home. To the contrary, the district court concluded that "[v]iewing the facts in the light most favorable to plaintiffs, a reasonable juror could determine that the circumstances Woo encountered did not demonstrate an imminent danger to the children's life or limb." Southerland II, 521 F. Supp. 2d at 234 n.29. The court further decided that "a reasonable juror could find that there was sufficient time to acquire a court order prior to the removal." Id. at 235 n.31. In light of those determinations, with which we agree, and our assessment that the relevant law was clearly established in 1997, we cannot conclude as a matter of law that "it was objectively reasonable for [Woo] to believe [that his] acts did not violate those [clearly established] rights." Holcomb, 337 F.3d at 220. Qualified immunity therefore is not available to Woo on the plaintiffs' procedural due process claims at the summary judgment stage. Because summary judgment also cannot be granted to the defendants on the underlying merits of these claims,18 we vacate the grant of summary judgment to Woo as to the procedural due process claims.
VI. Southerland's Substantive Due Process Claim
Southerland asserts a substantive due process claim against Woo under the Fourteenth Amendment. The district court held not only that qualified immunity attached to Woo's actions, but also that summary judgment would be warranted on the merits even in the absence of qualified immunity. We disagree with both conclusions.
A. Substantive Due Process in the Child-Removal Context - Substantive due process guards a person's rights "against the government's 'exercise of power without any reasonable justification in the service of a legitimate governmental objective.'" Tenenbaum, 193 F.3d at 600 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). "To establish a violation of substantive due process rights, a plaintiff must demonstrate that the state action was 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Lewis, 523 U.S. at 847 n.8). The interference with the plaintiff's protected right must be "'so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.'" Anthony, 339 F.3d at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523 U.S. at 840 (doctrine of substantive due process "bar[s] certain government actions regardless of the fairness of the procedures used to implement them" (internal quotation marks omitted)). Thus, in the child-removal context, we ask whether "the removal…would have been prohibited by the Constitution even had the [plaintiffs] been given all the procedural protections to which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis omitted). We have long recognized that parents have a "constitutionally protected liberty interest in the care, custody and management of their children," id. at 593, and that the deprivation of this interest is actionable under a theory of substantive due process, see id. at 600 (recognizing a "substantive right under the Due Process Clause 'to remain together without the coercive interference of the awesome power of the state'" (quoting Duchesne, 566 F.2d at 825)). We have also observed, however, that "[a]lthough parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves." Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation marks omitted), cert. denied, 528 U.S. 1155 (2000). We have explained that, in part because the law contemplates a careful balancing of interests, a parent's substantive constitutional rights are not infringed if a caseworker, in effecting a removal of a child from the parent's home, has a reasonable basis for thinking that a child is abused or neglected. See id. "This Circuit has adopted a standard governing case workers which reflects the recognized need for unusual deference in the abuse investigation context. An investigation passes constitutional muster provided simply that case workers have a 'reasonable basis' for their findings of abuse." Id.; see also id. at 108 (concluding that the "reasonable basis test" requires that caseworkers' decisions to substantiate an allegation of child abuse "be consistent with some significant portion of the evidence before them"). We have applied this "reasonable basis" standard from time to time in recent years. See, e.g., Nicholson, 344 F.3d at 174; Phifer v. City of N.Y., 289 F.3d 49, 60 (2d Cir. 2002); Kia P., 235 F.3d at 758-59. We have also recognized that substantive due process claims in the child-removal context have a temporal dimension. Because state interference with a plaintiff's liberty interest must be severe before it rises to the level of a substantive constitutional violation, see, e.g., Anthony, 339 F.3d at 143, "brief removals [of a child from a parent's home] generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal," Nicholson, 344 F.3d at 172 (citing Tenenbaum, 193 F.3d at 600-01 & n.12); see also Cecere, 967 F.2d at 830 (ruling that plaintiff's due process claim failed because a "brief" four-day removal, executed "in the face of a reasonably perceived emergency," did not violate due process); Joyner ex rel. Lowry v. Dumpson, 712 F.2d 770, 779 (2d Cir. 1983) (no substantive violation where temporary transfer of custody to foster-care system did not "result in parents' wholesale relinquishment of their right to rear their children").
B. Analysis - The district court, in deciding that qualified immunity protection prevailed, concluded that it was objectively reasonable for Woo to think that Southerland's substantive due process rights were not being violated because "[b]rief removals of children from their parents generally do not rise to the level of a substantive due process violation," Southerland II, 521 F. Supp. 2d at 232 (brackets and internal quotation marks omitted), and because the Southerland Children "were removed in the context of a child protective investigation [in which] removal would be subject to court confirmation," id.; see also id. at 234 (suggesting that "a family court judge confirmed the removal" at a "timely post-deprivation hearing"). We agree in principle. The removal of a child from his or her parent does not violate the parent's substantive due process rights if a post-removal judicial proceeding is promptly held to confirm that there exists a reasonable basis for the removal. The period of time in which the child and parent are separated at the sole instruction of the defendant is, in such a case, not severe enough to constitute a substantive due process violation by the defendant. See Nicholson, 344 F.3d at 172; Tenenbaum, 193 F.3d at 600-01. If it were clear in the record that the removal of the Southerland Children was confirmed by a prompt and adequate judicial confirmation proceeding, we would agree with the district court that summary judgment would be appropriate on that basis. But the record is not sufficiently clear for us to determine whether such a post-removal judicial proceeding occurred, and if so, the nature of it. The district court stated that the Southerland Children were removed and held in ACS custody "pending a timely post-deprivation hearing where a family court judge confirmed the removal." Southerland II, 521 F. Supp. 2d at 234. And the court had previously observed that the Southerland Children "remained in custody without a court order until the morning of June 12, 1997"—about forty-eight hours—"at which time Woo obtained a court order confirming the removal." Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL 2224432, at *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 2, 2006). Although the parties do not appear to dispute that a post-removal judicial confirmation proceeding was held, nor do they dispute that this proceeding took place within several days after removal, they provide no further detail upon which we can assess the nature of the proceeding in terms of its timeliness and adequacy.19
We are also unable to determine from the present record on what factual basis the Family Court decided that the continued removal of the Southerland Children was warranted. We do not know, for example, whether its decision to confirm the removal was based solely on written submissions by Woo to the same effect and containing the same errors as Woo's application for the Order Authorizing Entry. Apparently relying on the understanding that the Family Court had promptly confirmed the Southerland Children's removal, the district court concluded that no reasonable trier of fact could find that the removal of the Children was "so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Southerland II, 521 F. Supp. 2d at 235 (citation omitted). For much the same reason that we conclude that material questions of fact preclude summary judgment on the merits of the plaintiffs' procedural due process claims, however, we conclude that summary judgment was inappropriate on the merits of Southerland's substantive due process claim. A plaintiff's substantive due process claim fails if "there is an objectively reasonable basis for believing that parental custody constitutes a threat to the child's health or safety." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). Although this "reasonable basis" standard appears to impose a lesser burden on a defendant than the "emergency circumstances" standard applicable to procedural due process claims, summary judgment is nevertheless not appropriate unless "there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico, 132 F.3d at 149. The facts concerning the nature of Southerland's behavior during Woo's investigation and the conditions in the Southerland apartment at the time that Woo effected the removal remain hotly contested by the parties. For example, while Woo contends that the apartment lacked enough food, lighting, and bedding; that the Children were malodorous; and that various safety hazards were present, Southerland has tendered admissible evidence (albeit largely in the form of his own testimony) that each of those factual assertions is false. If the trier of fact were to credit Southerland's account, we cannot say that it would be unreasonable for it to then conclude that a reasonable caseworker in Woo's position lacked an "objectively reasonable basis" for removing the Children, Gottlieb, 84 F.3d at 518, and thus that Woo's actions were "shocking, arbitrary, and egregious," Anthony, 339 F.3d at 143 (internal quotation marks omitted). Moreover, in the absence of record evidence as to the substance of the post-removal judicial confirmation proceeding, we cannot conclude that the fact that the Family Court confirmed the removal of the Southerland Children suffices to show that Woo's conduct had an objectively reasonable basis. Cf. Southerland II, 521 F. Supp. 2d at 234-35.
Finally, we consider whether Woo is nonetheless entitled to summary judgment on the basis of qualified immunity. As noted, qualified immunity is available to defendants "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818; see also Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir.), cert. denied, 131 S. Ct. 158 (2010). When a defendant official invokes qualified immunity as a basis for summary judgment, a court must consider not only whether evidence in the record suggests a violation of a statutory or constitutional right, but also "whether that right was clearly established at the time of the alleged violation." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Thus, if it could be shown that, at the time of the events in question, Woo lacked a legal basis upon which he could conclude that his actions would violate Southerland's substantive due process rights, Woo would be entitled to qualified immunity. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer [in the position of the defendant] that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In answering that question, we consider: "(1) whether the right was defined with reasonable specificity; (2) whether Supreme Court or court of appeals case law supports the existence of the right in question, and (3) whether under preexisting law a reasonable defendant would have understood that his or her acts were unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). "The task of framing the right at issue with some precision is critical in determining whether that particular right was clearly established at the time of the defendants' alleged violation." Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010); see also Wilson v. Layne, 526 U.S. 603, 609 (1999). Although the matter of whether a right at issue is clearly established is a question of law, Higazy v. Templeton, 505 F.3d 161, 170 (2d Cir. 2007), that question is "tied to the specific facts and context of the case," Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007). In 1997, when Woo effected the removal, it was well established as a general matter that parents possess a substantive right under the Due Process Clause of the Fourteenth Amendment to exercise care, custody, and control over their children. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Gottlieb, 84 F.3d at 518; Joyner ex rel. Lowry, 712 F.2d at 777. It was also the law, however, that where "parental custody constitutes a threat to the child's health or safety, government officials may remove a child from his or her parents' custody at least pending investigation." Gottlieb, 84 F.3d at 518; see also Stanley v. Illinois, 405 U.S. 645, 649-53 (1972); Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). We therefore determined prior to 1997 that where the state has an "objectively reasonable basis" for removing a child from his or her parent, the parent's substantive constitutional rights are not infringed. Gottlieb, 84 F.3d at 518; see generally id. at 520; van Emrik v. Chemung County Dep't of Soc. Servs., 911 F.2d 863, 866 (2d Cir. 1990). We also repeatedly assured potential defendants that qualified immunity would be available to "protect state officials in choosing between [difficult] alternatives, provided that there is an objectively reasonable basis for their decision, whichever way they make it." van Emrik, 911 F.2d at 866; see also Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (per curiam) (qualified immunity exists to "insure that publicly employed caseworkers have adequate latitude to exercise their professional judgment in matters of child welfare"). In 1999, two years after the events in question here, we summarized the state of the law in Wilkinson: "Although parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the 'compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.'" Wilkinson, 182 F.3d at 104 (quoting Manzano v. S.D. Dep't of Soc. Servs., 60 F.3d 505, 510 (8th Cir. 1995) (internal quotation marks omitted)). We observed that "[t]he difficulty of balancing the weighty interests apparent in the [child] abuse context…has prompted courts to impose few concrete restrictions on case workers, in exercising their discretion, short of [certain] obvious extremes." Id. We described those "extremes" as including circumstances where a caseworker "ignor[es] overwhelming exculpatory information" or "manufactur[es] false evidence." Id. We concluded in dicta that our decisions to that date had left the defendants at bar "with little or no indication that their alleged misconduct, as near as it was to the constitutional borderline, would have even implicated serious constitutional concerns." Id. at 107; see also Patel v. Searles, 305 F.3d 130, 139 (2d Cir. 2002), cert. denied, 538 U.S. 907 (2003). Our discussion in Wilkinson would seem to suggest that perhaps there was a lack of clearly established law available to guide Woo's conduct. We nonetheless cannot conclude as a matter of law that, in 1997, Woo lacked sufficient legal guidance by which to discern the lawfulness of his actions. Assuming, as we must at the summary judgment stage, that the factual circumstances are as Southerland, not Woo, describes them, and resolving all credibility questions and drawing all reasonable inferences in Southerland's favor, we are not able to say that Woo would then have lacked a legal basis for understanding that removing the children from their home would be unlawful. Indeed, the district court here was also of the view that "Southerland's substantive due process rights were clearly established at the time of the removal of the children." Southerland II, 521 F. Supp. 2d at 232. We therefore cannot conclude on this record that the principles of law applicable to the facts as we must view them on appeal from a grant of summary judgment were not clearly established in 1997. Woo is thus not entitled at this stage to qualified immunity on Southerland's substantive due process claim, although, again, once the relevant disputes of material fact are resolved, the district court might eventually conclude that Woo is entitled to such immunity.
VII. The Southerland Children's Fourth Amendment Unlawful-Seizure Claim - Finally, the Southerland Children assert a claim for violation of their own substantive due process rights, which the district court recharacterized as a claim of unlawful seizure under the Fourth Amendment. See Southerland II, 521 F. Supp. 2d at 227 n.22, 230 n.24. The district court concluded that Woo was entitled to qualified immunity because "prior to the Court of Appeals' decision in Tenenbaum [in 1999], there was no clear application of Fourth Amendment standards in the child removal context." Id. at 231. Although we agree with the district court's observation that this Circuit had not yet applied Fourth Amendment unlawful-seizure principles in the child-removal context by 1997, we think that the district court erred by conducting its inquiry solely by reference to the Fourth Amendment. Our decision in Tenenbaum effected a change in the legal framework applicable to a child's claim for substantive constitutional violations arising out of the child's removal from his or her parent's home. There, the plaintiffs contended that "[their daughter's] temporary removal for the purpose of subjecting her to a medical examination violated their and [the daughter's] substantive due-process rights." Tenenbaum, 193 F.3d at 599. Relying on Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion of Rehnquist, C.J.), we observed thatvwhere a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims. Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks omitted). We said that "'[s]ubstantive due process analysis is…inappropriate…if [the] claim is covered by the Fourth Amendment.'" Id. at 600 (quoting Lewis, 523 U.S. at 843) (second brackets in original; other internal quotation marks omitted). We then concluded that the daughter's "removal and her examination constituted a seizure and search, respectively, under the Fourth Amendment," id., and that her claim "therefore 'must be analyzed under the standard appropriate to [the Fourth Amendment], not under the rubric of substantive due process.'"20 Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). The fact that Tenenbaum changed the legal "rubric" applicable to the Southerland Children's constitutional claims, however, is not determinative of whether their rights were clearly established in 1997. It would be inappropriate, we think, to afford Woo qualified immunity on the Southerland Children's claims solely because, two years after the events in question, we shifted the constitutional framework for evaluating those claims from the Fourteenth to the Fourth Amendment.
We reached a similar conclusion in Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818 (2007). There we made clear that the constitutional "right to be free from prolonged detention caused by law enforcement officials' mishandling or suppression of exculpatory evidence," id. at 211, was a species of the right to be free from unlawful seizure under the Fourth Amendment, not a substantive due process right under the Fourteenth Amendment, see id. at 208-09. In then proceeding to undertake a qualified immunity inquiry, we cautioned that our "clarification [of the law was] of no consequence to the question of whether the right was clearly established [at the time of the relevant events], because the proper inquiry is whether the right itself—rather than its source—is clearly established." Id. at 212 (collecting cases; emphasis in original). Here, as in Russo, in inquiring whether there was clearly established law to govern the Southerland Children's claims in 1997, we look not only to authorities interpreting the Fourth Amendment, but to all decisions concerning the same substantive right. At the time of the events in question in this case, a child's claim for violation of his or her right to "preservation of family integrity," Duchesne, 566 F.2d at 825, would likely have been understood to arise under the substantive due process guarantee of the Fourteenth Amendment. This right had been recognized in our case law by 1997, see Joyner ex rel. Lowry, 712 F.2d at 777-78; Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982); Leonhard v. United States, 633 F.2d 599, 618 (2d Cir. 1980) (collecting cases); Duchesne, 566 F.2d at 825, although it had been less frequently litigated than the corresponding substantive parental right. As with the corresponding parental right, however, the law in 1997 also recognized the countervailing principle that the state may remove children from the custody of their parents without violating the children's constitutional rights where there is a reasonable basis for concluding that the children are abused or neglected. See, e.g., Rivera, 696 F.2d at 1017.
For much the same reason that we determined that Woo is not entitled to qualified immunity as a matter of law on the current record as to Southerland's substantive due process claim, resolving all disputed facts in the plaintiffs' favor for these purposes, we conclude that a reasonable caseworker in Woo's position would not have lacked a sufficient legal basis for knowing that his conduct under those circumstances would infringe upon the substantive constitutional rights of the Southerland Children. As with the other claims addressed in these appeals, though, the district court may yet conclude on remand and after further development of the facts that Woo is entitled to qualified immunity in this context.
Finally, we note that the district court concluded that, in the absence of qualified immunity protection, Woo would not be entitled to summary judgment on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 234 n.29. We have no reason to disturb that ruling on appeal.
CONCLUSION - For the foregoing reasons, we vacate the district court's grant of summary judgment on each of the plaintiffs' claims that have been preserved for appeal: (1) Southerland's and the Southerland Children's claims for Fourth Amendment violations arising out of the allegedly unlawful search of the Southerland home; (2) Southerland's and the Southerland Children's claims for violations of procedural due process under the Fourteenth Amendment; (3) Southerland's claim for violation of substantive due process under the Fourteenth Amendment; and (4) the Southerland Children's claim for unlawful seizure under the Fourth Amendment. We remand for further proceedings. *. The Clerk of Court is directed to amend the official caption in accordance with the foregoing.
--------------------Footnotes:
1. We refer throughout this opinion to asserted Fourth Amendment rights of the plaintiffs. Inasmuch as the defendants are state and not federal actors, of course, whatever rights the plaintiffs have are "under the Fourth Amendment, as applied to the States under the Fourteenth Amendment['s]" Due Process Clause. Kia P. v. McIntyre, 235 F.3d 749, 761 (2d Cir. 2000); see Mapp v. Ohio, 367 U.S. 643, 655 (1961).
2. Judge Sifton passed away while these appeals were pending.
3. Southerland later testified that the school contacted him with a medical referral after the paint-swallowing incident, and that he had tried to get Ciara to go to the appointment that was scheduled for her, but that she refused to go.
4. Woo listed the Manning Children's names at the top of the application, along with Southerland's name and the address of the Southerland apartment. The body of the application states in its entirety: I, Timothy Woo, Caseworker for ACS, am a person conducting a child protective investigation pursuant to the Social Services Law. I have reasonable cause to believe that the above named children may be found at the above premises. I have reason to believe that the children are abused or neglected children. The reasons and the sources of information are as follows: That on May 12, 1997, Sierra [sic] Manning, age 16 tried to kill herself by swallowing non-toxic paint. Mr. Sutherland [sic] did not take Sierra [sic] to a medical doctor and refused to take Sierra [sic] for psychiatric evaluation. Mr. Sutherland [sic] has refused to allow the Administration for Children's Services into his home to speak to the above named children. WHEREFORE, the applicant moves for an order authorizing the Administration for Children's Services accompanied by police to enter the premises to determine whether the above named children are present and to proceed thereafter with its child protective investigation. Application for Authorization to Enter Premises dated June 6, 1997, Ex. C to Silverberg Decl.
5.The district court summarized Woo's and Balan's stated reasons for removing the Children as including: the seriousness of the initial allegation in the Intake Report—that Ciara had attempted suicide; that Southerland had failed to seek medical assistance for Ciara or for Venus; that he had resisted allowing ACS to visit his home; that he had refused to accept ACS services or assistance; that the home lacked food and adequate light; that the use of multiple extension cords for the electronic equipment was dangerous; and that the children were dirty. This combination of factors, according to Woo and Balan, "established in [their] minds that Southerland could not parent the children responsibly." Southerland II, 521 F. Supp. 2d at 225.
6. After the Southerland Children's removal, Woo brought Venus "to a hospital based on the instructions of a nurse at the agency that first examined the children. At the hospital, the wound was dressed and the child received a tetanus shot." Southerland II, 521 F. Supp. 2d at 225 n.13.
7. On March 14, 2007, Southerland made a pro se submission to the district court requesting that the court take judicial notice of a number of documents, including a declaration by Ciara Manning that had been sworn on April 20, 2002. In that declaration, Ciara stated that Southerland had never molested or abused her in any way and that the statements she made previously to Woo and to the Family Court to that effect were false. See Pro Se Submission of Sonny B. Southerland at 26-27 (Dkt. No. 192), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Mar. 14, 2007). 13
8. Michael G. O'Neill was appointed as counsel for both Southerland and the Southerland Children. In April 2004, Southerland resumed proceeding pro se before the district court, while Mr. O'Neill continued to represent the Southerland Children (including Venus and Sonny Jr., even after they were no longer minors). In April 2004, the district court also appointed a guardian ad litem to represent the Southerland Children's interests. Southerland II, 521 F. Supp. 2d at 221 n.1. In the instant appeals, Southerland represents himself pro se, while Mr. O'Neill continues to represent the Southerland Children.
9. The amended complaint did not name as defendants or assert any claims against any of the other thirty-nine defendants that had been named by Southerland in his original pro se complaint. Additionally, although Ciara was identified as a plaintiff in the original complaint, she was dropped from the suit when the amended complaint was filed.
10. The amended complaint also joins nine John Doe defendants, including all persons who "supervis[ed], monitor[ed] and assist[ed] Woo in his actions with respect to the [Southerland] Children." Am. Compl. ¶39 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). The complaint asserts that "said Does are individually liable to [Southerland] for the deprivation of his constitutional rights and the constitutional rights of the [Southerland] Children as alleged herein." Id. In their briefing on appeal, the plaintiffs do not address these John Doe defendants. We conclude that the plaintiffs have abandoned their claims against the John Does. We note that even if the plaintiffs now sought to amend their complaint to identify the John Doe defendants, the claims against the newly named defendants would be time-barred. See Tapia-Ortiz v. Doe, 171 F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996).
11. In so doing, the district court relied upon our statement, when the case was previously on appeal, that "[t]he children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2 (citing Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)).
12. The district court later permitted the Southerland Children to assert their failure-to-train claim against the City not only with respect to the police, but also with respect to ACS. See Southerland II, 521 F. Supp. 2d at 235 n.34.
13. "Where another provision of the Constitution provides an explicit textual source of constitutional protection, a court must assess a plaintiff's claims under that explicit provision and not the more generalized notion of substantive due process." Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S. 286, 293 (1999)) (brackets and internal quotation marks omitted).
14. The defendants also argue, with respect to the probable cause determination, that irrespective of the requirements of New York Family Court Act §1034(2), Woo was required to visit the Southerland home under a provision of the New York Social Services Law that requires that, within twenty-four hours of receipt of a "report[] of suspected child abuse or maltreatment" as provided for under New York Social Services Law §424(1), ACS must undertake an investigation that includes "an evaluation of the environment of the child named in the report and any other children in the same home," id. §424(6)(a). However, considering that Woo had reason to know that Ciara, the child identified in the report, was not living at the Southerland home—and, indeed, reason to know that none of the children named in his application to the Family Court were living there—his reliance on this provision of the Social Services Law fails. If Ciara was not living "on premises" at the Southerland home, Woo was not entitled to enter the home to evaluate this "environment," nor to evaluate the other children living there.
15. In child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth Amendment purposes. See Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003); Tenenbaum, 193 F.3d at 602.
16. We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland 16 We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland
17. In Tenenbaum, a removal was carried out because the child had reported—albeit under questionable circumstances—that her father had sexually abused her. See Tenenbaum, 193 F.3d at 594. There was no doubt at the time that the possibility of sexual abuse was, as it always is, a serious concern. At issue was whether there was nonetheless time under the circumstances to secure a court order prior to effecting the removal without risking imminent danger to the child. See id. at 608 (Jacobs, J., dissenting) (describing majority opinion as holding that, while there was "exigency," there was still no "emergency," because there was time to obtain a court order). Tenenbaum represented a novel application of procedural due process law because of the majority's holding that regardless of the seriousness of the allegations, it was still necessary to obtain a court order if time permitted. Here, by contrast, we understand the plaintiffs to assert that the circumstances presented did not necessitate an inquiry into whether there was time to obtain a court order, because the conditions in the Southerland home were not grave enough to trigger that inquiry.
18. The district court correctly noted that there are material factual disputes concerning whether emergency circumstances existed warranting the immediate removal of the Southerland Children from their home. See Southerland II, 521 F. Supp. 2d at 234 n.29 & 235 n.31. But even where emergency circumstances warranting removal exist, "'the constitutional requirements of notice and opportunity to be heard are not eliminated but merely postponed.'" Kia P., 235 F.3d at 760 (quoting Duchesne, 566 F.2d at 826). Therefore, a plaintiff may have a viable claim for violation of procedural due process even where emergency circumstances existed at the time of removal, if the plaintiff does not receive a timely and adequate postdeprivation hearing. See id. at 760-61. In this case, as will be explained below, important factual questions remain concerning the post-removal judicial confirmation proceedings, if any, that took place in the days after the Southerland Children's removal from their home.
19. See Southerland Children's Br. at 23 ("The children were held by the defendants without court order from June 9 until June 13, 1997. ACS filed a petition in the Family Court on June 13, 1997, and apparently some kind of proceeding was held on that day, although there is no evidence of it in the record."); Appellees' Br. at 19 ("Plaintiff Southerland's children, the Court found, were removed from the home and held in ACS custody pending a timely post-deprivation hearing where a family court judge confirmed the removal."). The parties have failed to brief the issue despite our prior instruction that Southerland "be given an opportunity to prove…that the subsequent family court proceedings were insufficiently prompt to pass constitutional muster." Southerland I, 4 F. App'x at 36.
20. We reaffirmed this approach in Kia P., 235 F.3d at 757-58, where we also construed a child's claimed violation of substantive due process as instead arising under the Fourth Amendment. In Southerland I, we relied on Kia P. in stating that "[t]he [Southerland] children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2..
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