12-4137-cv
Doe v. Whelan




                                         In the
             United States Court of Appeals
                          For the Second Circuit
                                     ________
                                 AUGUST TERM, 2013

                                    No. 12-4137-cv

            JANE DOE, CHILD ONE DOE, CHILD TWO DOE, AND
           CHILD THREE DOE, ALL THROUGH THEIR PARENT AND
                       NEXT FRIEND, JANE DOE,
                         Plaintiffs-Appellants.

                                             v.

               ANDREW WHELAN, DAVID WILLIAMS, KENNETH
                            MYSOGLAND,
                        Defendants-Appellees.*
                              ________

           Appeal from the United States District Court
                  for the District of Connecticut.
No. 08 CV 846 (TLM) ― Tucker L. Melançon, of the Western District
               of Louisiana, sitting by designation.
                              ________
                    ARGUED: AUGUST 22, 2013
                    DECIDED: OCTOBER 16, 2013
                             ________

* The Clerk of Court is directed to amend the official caption in this case to conform to the
listing of the parties above.
2                                         No. 12-4137-cv




Before: CABRANES, HALL, and CHIN, Circuit Judges.
                            ________

       In this appeal we consider whether the United States District
Court for the District of Connecticut (Tucker L. Melançon, Judge, of
the Western District of Louisiana, sitting by designation) erred in
granting summary judgment to employees of the Connecticut
Department of Children and Families on the ground of qualified
immunity in this 42 U.S.C. § 1983 action seeking damages for the
removal of three children from their home without parental consent
or a court order.

       We hold, based on undisputed facts in the record, that the
defendants’ decision to remove the children without parental
consent or a court order was justified by an objectively reasonable
belief that there was an imminent threat to the children’s safety.
Accordingly, we AFFIRM the judgment of the District Court.
                            ________

                  KATHRYN EMMETT, Emmett & Glander, Stamford,
                  CT, for Plaintiffs-Appellants.

                  LYNN D. WITTENBRINK, Assistant Attorney
                  General, for George Jepsen, Attorney General of
                  Connecticut, Hartford, CT, for Defendants-
                  Appellees.
                             ________
3                                        No. 12-4137-cv




JOSÉ A. CABRANES, Circuit Judge:

       Plaintiff Jane Doe, on behalf of herself and her three children
(the “Doe Children” and, jointly with Doe, “plaintiffs”), brought this
42 U.S.C. § 1983 action against defendants Andrew Whelan, David
Williams, and Kenneth Mysogland, three employees of the
Connecticut Department of Children and Families (“DCF”).
Plaintiffs allege that the removal of the Doe Children from Doe’s
home without a court order violated their rights to due process of
law and to freedom from unreasonable seizures under the Fourth,
Fifth, and Fourteenth Amendments to the United States
Constitution. The United States District Court for the District of
Connecticut (Tucker L. Melançon, Judge, of the Western District of
Louisiana, sitting by designation) granted summary judgment to the
defendants on the basis of qualified immunity. Plaintiffs appealed.

       We now hold, based on undisputed facts in the record, that
the defendants’ decision to remove the children without parental
consent or a court order was justified by an objectively reasonable
belief that there was an imminent threat to the children’s safety. The
defendants are therefore protected by the doctrine of qualified
immunity and, accordingly, we affirm the judgment of the District
Court.

                          I. BACKGROUND

                                   A.

       The events giving rise to this litigation began on April 30,
2005, when Richard Roe (“Roe”), the Doe Children’s father, was
arrested after assaulting a pregnant Jane Doe in their residence.
JA795; Red 4. The children―then aged seven years, four years, and
twenty-two months old―were at home during the assault. The DCF
4                                                   No. 12-4137-cv




report of the incident authored by defendant Williams noted that the
“[f]ather seriously physically hurt [the] mother by punching her in
the face multiple times causing . . . significant injuries to the 5 week
pregnant mother.” Joint App’x 795. The report also noted that there
had been previous assaults, and that actions taken thus far were
“not adequate in regards [sic] to protecting [the] children.” Id.

       On May 1, 2005, DCF entered into a “Service
Agreement/Safety Plan” with Doe, pursuant to which Doe agreed
not to have contact with Roe or to allow him to have contact with
the children. On May 2, 2005, the Superior Court of the State of
Connecticut issued a Family Violence Protective Order (the
“Protective Order”) against Roe which, among other things, directed
Roe to “[r]efrain from entering the family dwelling, the dwelling of
the Victim or wherever the Victim shall reside.” Joint App’x 168.
On May 5, following issuance of the Protective Order, DCF entered
into a new “Service Agreement/Safety Plan” with Doe, pursuant to
which Doe could be in contact with Roe but could not allow Roe
inside her home.

       On June 3, 2005, defendant Whelan, a Social Work Supervisor
at DCF, learned that the case was being assigned to him. Whelan
spoke with prior DCF workers and reviewed the case files. At that
time, the previous two “Service Agreement/Safety Plans” governing
arrangements between Richard Roe, Jane Doe, and the Doe Children
had expired, but the Protective Order of the Superior Court directed
at Roe remained in effect.1


    1 The District Court mistakenly stated that “Jane Doe violated two DCF Service
Agreement/Safety Plans in which she agreed not to let the Doe Children’s father into the
home and to contact the police if he sought to gain entry.” Doe v. Whelan, No. 08-846
(TLM), 2012 WL 4056723, at *6 (D. Conn. Sept. 14, 2012).
5                                                  No. 12-4137-cv




       On June 4, 2005, Whelan went to Doe’s home in New Canaan,
Connecticut, accompanied by two New Canaan police officers, to
conduct a “DCF welfare check.” Joint App’x 206. Upon arrival,
Whelan noticed that Roe’s car was in the driveway and his personal
items were in the house. In response to questioning, Doe eventually
admitted that she had permitted Roe to accompany her and the
children to her home—in violation of the Superior Court’s Protective
Order—so that Roe could “tuck” the children into bed. While at the
home, Whelan also observed Roe run into the nearby woods with no
shirt or shoes, likely having jumped out of a second-story window.

      Whelan promptly sought and received authorization from
defendant Mysogland, a Program Supervisor at DCF, to remove the
children pursuant to Connecticut General Statute § 17a-101g(f),
which authorizes DCF to remove children from the custody of their
parents for up to ninety-six hours if DCF “has probable cause to
believe that the child or any other child in the household is in
imminent risk of physical harm from the child’s surroundings and
that immediate removal from such surroundings is necessary to
ensure the child’s safety . . . .”2 Conn. Gen. Stat. § 17a-101g(e). The
children were removed at 9:40 p.m. and transported to the home of
Richard Roe’s sister in Branford, Connecticut.


    2 Defendant Williams was named as the authorizing officer on the June 4 notice of
“Immediate Removal/96-Hour Hold of Child(ren).” Joint App’x 204. Williams, who was
Whelan’s immediate supervisor, was vested with the authority to conduct removals
without court orders. It is undisputed, however, that Williams was not involved in the
June 4 removal. Rather, Mysogland told Whelan to put Williams’s name on the form
instead of Mysogland’s for personal reasons. Mysogland then notified Williams that his
name had been used, and Williams agreed with the removal decision. The District Court
granted summary judgment for Williams on the ground that he was not involved in the
removal. Doe, 2012 WL 4056723, at *3. Insofar as Doe’s appeal challenges this aspect of
the District Court’s order we affirm for the reasons stated by the District Court.
6                                       No. 12-4137-cv




       The following Tuesday, June 7, 2005, Judge A. William
Mottolese of the Superior Court of Connecticut issued three ex parte
Orders of Temporary Custody (“OTC”), which temporarily vested
custody of the three children with DCF. On July 13, 2005,―after a
two-day evidentiary hearing at which Doe and Roe were
represented by separate counsel―Judge Carl E. Taylor of the
Superior Court for Juvenile Matters issued an order vesting custody
with DCF based on a finding that “each of the children is in
immediate physical danger of [his or her] surroundings and that
continuation in their home is contrary to their welfare.” Doe v.
Whelan, No. 08-846 (TLM), 2012 WL 4056723, at *2 (D. Conn. Sept. 14,
2012) (quoting July 13, 2005 Order). The Doe Children remained
with Roe’s sister from June 4 until September 6, 2005, when Judge
Mottolese conducted another hearing in which the Doe Children
were adjudicated neglected—pursuant to a stipulation by both Doe
and Roe—and returned to Doe’s custody under protective
supervision for one year. Joint App’x 897. Both Doe and Roe were
ordered to comply with “Specific Steps” the violation of which could
result in incarceration. Id.

                                 B.

      Plaintiffs brought this suit on June 4, 2008, seeking damages
pursuant to 42 U.S.C. § 1983. They alleged that, by removing the Doe
children from their home in the absence of a court order, the
defendants “deprived plaintiffs of their rights to due process and to
be free from unreasonable seizures under the 4th, 5th and 14th
Amendments.” Complaint ¶ 1. On September 14, 2012, the District
Court granted the defendants’ motion for summary judgment,
concluding, in relevant part, that the defendants’ removal of the
children from Doe’s home was “objectively reasonable” in the
7                                                      No. 12-4137-cv




circumstances, and therefore, that they were entitled to qualified
immunity. Doe, 2012 WL 4056723, at *4-7.

        Plaintiffs timely appealed.

                                  II. DISCUSSION

       Plaintiffs argue that the District Court “erred in granting
summary judgment to the defendants on the basis of qualified
immunity.”3 Appellant’s Br. 1. We review de novo an order granting
summary judgment and “resolv[e] all ambiguities and draw[ ] all
permissible factual inferences in favor of the party against whom
summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d
Cir. 2010) (internal quotation marks omitted). We affirm when
“there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       As we have explained, “in emergency circumstances, a child
may be taken into custody by a responsible State official without
court authorization or parental consent.” Southerland v. City of New
York, 680 F.3d 127, 149 (2d Cir. 2012) (internal quotation marks
omitted). Such a state official is entitled to qualified immunity from
actions under 42 U.S.C. § 1983 “unless the official's conduct violated
a clearly established constitutional right.” Pearson v. Callahan, 555
U.S. 223, 232 (2009). Where the law is clearly established, “a
caseworker is . . . entitled to qualified immunity if officers of
reasonable competence could disagree on the legality of the action at
issue in its particular factual context.” Southerland, 680 F.3d at 141
    3 Specifically, plaintiffs contend that the District Court (1) failed to consider relevant
and admissible expert testimony; (2) incorrectly applied the standard for qualified
immunity; and (3) failed to construe the evidence in a light favorable to plaintiffs in
deciding disputed issues of fact. Appellant Br. at 1.
8                                                     No. 12-4137-cv




(internal quotation marks omitted); accord Malley v. Briggs, 475 U.S.
335, 341 (1986).

       Although this inquiry is known as the “objective
reasonableness test,” see Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.
1995), qualified immunity does not require application of a single
“reasonable person” standard as that concept is understood in the
law of torts.4 Rather, qualified immunity shields from liability state
officials tasked with choosing between interrupting parental custody
or risking injury to the child “provided that there is an objectively
reasonable basis for their decision, whichever way they make it.”
Tenenbaum v. Williams, 193 F.3d 581, 596 (2d Cir. 1999) (emphasis
added).

       After reviewing the record de novo, we agree with the District
Court that the defendants are entitled to qualified immunity. In the
circumstances presented here, it was “objectively reasonable”—
within the meaning of the law of qualified immunity—for the
defendants to believe “that there was an immediate threat to the
safety of the Doe Children and a risk that the Doe Children would
be left bereft of care and supervision.” Doe, 2012 WL 4056723, at *5;
see also id. (“Given the record before the Court as to the history

    4  The law of torts anticipates a uniform “standard to which the defendant’s conduct
must conform in order that he shall escape liability for harm done. . . .” Restatement
(Second) of Torts § 285 cmt. a. (1965). In the context of qualified immunity, however, a
test permitting of a single, objectively-reasonable standard of conduct is irreconcilable
with the Supreme Court’s recognition that an officer may be shielded from liability even
if his actions involve errors in judgment. See Pearson, 555 U.S. at 231 (“The protection of
qualified immunity applies regardless of whether the government official’s error is a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”
(internal quotation marks omitted)); Malley, 475 U.S. at 341 (“As the qualified immunity
defense has evolved, it provides ample protection to all but the plainly incompetent or
those who knowingly violate the law.”).
9                                       No. 12-4137-cv




between Jane Doe and Richard Roe, at a bare minimum, DCF officers
of reasonable competence could disagree on the legality of
defendants’ decision . . . .” (emphasis in original)).

       At the time of removal, the defendants were aware of the
contentious history between Roe and Doe. Doe had been the subject
of multiple physical assaults at the hands of Roe, at least one of
which occurred while the children were in the home. DCF “Service
Agreements/Safety Plans” had been in place requiring Doe to
contact the police if Roe attempted to enter her home. The Superior
Court had issued a Protective Order prohibiting Roe from entering
Doe’s home, which remained in place. Once at Doe’s home, the
defendants learned that Roe had violated the Protective Order,
which Doe was either unwilling or unable to prevent. Because Roe
had fled the property, leaving his car, shirt, and shoes behind, he
was likely to return, but Whelan could not know when he would do
so. Given the history of domestic violence, with which Whelan was
familiar, and Roe’s presence in the home late at night, it was
objectively reasonable to believe that the children were in immediate
danger.5

      The reasonableness of the officers’ conclusion is bolstered by
the subsequent findings of two judges of the Superior Court that the
children were in “immediate physical danger [from their]
surroundings and that continuation in their home [wa]s contrary to
their welfare.” Id. at *7 (internal quotation marks omitted). These
findings were based on the same information possessed by the
defendants at the time of removal and, in one case, followed two
days of evidentiary hearings on that information. Cf. Walczyk v. Rio,
496 F.3d 139, 155-56 (2d Cir. 2007) (noting the well-established rule

    5   These events are undisputed.
10                                                     No. 12-4137-cv




that “an arrest or search pursuant to a warrant issued by a neutral
magistrate is presumed reasonable”).

       In support of their argument, plaintiffs refer us to Southerland
v. City of New York, which denied summary judgment based on
qualified immunity for an officer’s removal of children from their
home without a court order. See Southerland, 680 F.3d at 157-61. But
the instant case differs in two important ways. First, Southerland
involved significant factual disputes regarding, inter alia, what the
removing officer knew about the children’s history and what the
officer witnessed regarding the conditions of the home. See id. at 133-
36. Such disputes are not present here. Second, the Southerland Court
agreed with the District Court’s conclusion that the defendants had
not established the existence of exigent circumstances. See id. at 149.6
In contrast, the District Court in this case analyzed the availability of
qualified immunity under the clearly established “exigent
circumstances” inquiry and found, based on the undisputed facts as
set forth above, that a reasonable officer could conclude that the
children were in imminent danger. We agree.

     Finally, the District Court’s failure to consider the Expert
Report of Evan Stark, Ph.D., (the “Stark Report”)7 does not render

     6 The Court held that summary judgment was improper because it could not
“conclude as a matter of law on the current record that it would have been objectively
reasonable for [the state officer] to believe that his actions did not violate the Children’s
constitutional right not to be removed from their home barring exigent circumstances. . . .”
Southerland, 680 F.3d at 161 (emphasis added).
     7 Dr. Stark holds, among other degrees, a Ph.D. in sociology, and is currently an
Associate Professor at the School of Public Affairs and Administration and Director of
the Masters in Public Health Program at Rutgers University-Newark, as well as the Chair
of the Department of Urban Health Administration at the University of Medicine and
Dentistry    of   New      Jersey  School    of    Public   Health.       JA93,    116;
http://urwebsrv.rutgers.edu/experts/index.php? a=display&f=expert&id=1289.
11                                                       No. 12-4137-cv




inappropriate the entry of summary judgment. Even assuming that
Dr. Stark’s testimony was admissible at trial―a matter of some
doubt8―when contrasted with the views of the defendants and two
judges, all of whom concluded that there was an imminent threat of
harm to the children, the Stark Report confirms, at most, that officers
of reasonable competence could disagree on whether immediate
removal was necessary. Qualified immunity protects officers under
such circumstances.

       In sum, notwithstanding the evidence plaintiffs claim the
District Court overlooked or misconstrued, we readily conclude that
the defendants are entitled to qualified immunity here.

                                     CONCLUSION

To summarize, we hold that:

     (1) A state official who takes a child into custody without
         parental consent or court order is entitled to qualified
         immunity if there was an objectively reasonable basis to
         believe that there was an imminent threat of harm to the child.

     (2) Based upon the evidence in the record—including the history
         of domestic violence between Roe and Doe, the violation of

     8  “A submission in opposition to (or in support of) summary judgment need be
considered only to the extent that it would have been admissible at trial.” Garcia v.
Hartford Police Dept., 706 F.3d 120, 127 (2d Cir. 2013); see also Nora Beverages, Inc. v. Perrier
Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (noting that we review summary-
judgment-related evidentiary rulings for “manifest error”). We are skeptical that many
of Dr. Stark’s conclusions would have been admissible, inasmuch as they appear to be
conclusory and overly general, see Major League Baseball Props., Inc. v. Salvino, Inc., 542
F.3d 290, 311 (2d Cir. 2008), although it would have been preferable for the District Court
to state explicitly its reasons for disregarding this report.
12                                     No. 12-4137-cv




     the protective order, and the Superior Court’s finding that the
     children were in immediate physical danger—the defendants’
     decision to take the Doe Children into state custody was
     objectively reasonable.

      For the reasons stated above, we AFFIRM the September 14,
2012 judgment of the District Court granting summary judgment to
the defendants.
