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Southerland v.

City of New York, 07-4449-cv (L)

A New York City caseworker who removed children from a home based on faulty information is not protected by qualified immunity, the U.S. Court of Appeals for the Second Circuit has ruled. Reversing a lower court, the Second Circuit vacated a finding of summary judgment for New York City and Timothy Woo, a caseworker in the Brooklyn field office of the New York City Administration for Children's Services. Judges Amalya Kearse, Robert Sack and Peter Hall found in Southerland v. City of New York, 07-4449-cv, that misstatements and omissions in the application Mr. Woo submitted to obtain a Family Court order of removal could possibly be found by a jury to have been made knowingly or recklessly. Judge Sack wrote for the court, explaining that the issue arose, in part, because of Mr. Woo's confusion about two groups of children living in two different homes. Plaintiff Sonny B. Southerland and non-party Diane Manning have a daughter, Ciara Manning, who was 16 years old in 1997 and was thought to be living with Mr. Southerland when Mr. Woo was assigned to investigate a report from a school counselor that she was acting strangely. The counselor said Ciara Manning was "emotionally unstable," had swallowed a can of paint, had expressed suicidal thoughts and that she "may be staying out of the home" in an improper environment. Mr. Southerland had six other children by one or more women other than Diane Manning who were all living with him at the time of the investigation. Diane Manning also had six other children, not by Mr. Southerland. Mr. Woo's first step was to look at ACS case files pending on Diane Manning. He tried and failed to gain access to the Southerland home to investigate, allegedly unaware that Ciara Manning had moved out and was staying with a friend. On June 6, 1997, Mr. Woo went to Kings County Family Court to obtain an order to gain access to the apartment, but his application contained several misstatements of fact. Ciara Manning was not present at the apartment, but Mr. Woo was concerned enough about the poor condition of the home and of the children that he and a supervisor had the children removed from the home on June 9 and 10, 1997.

Mr. Southerland and the children then sued in the Eastern District claiming violations of the Fourth, Fifth and Fourteenth amendments. The late Eastern District Judge Charles B. Sifton found that Mr. Woo was shielded by qualified immunity and granted summary judgment. The Second Circuit heard oral arguments in April 2009 and last week issued a 57-page opinion in which it remanded the case for further proceedings. Judge Sack said that Mr. Woo had interviewed Mr. Southerland on the telephone and at an ACS office and the father reported that Ciara had run away and that he had obtained several "Persons in Need of Supervision" (PINS) warrants. Mr. Woo tracked down Ciara, who alleged her father had sexually abused her and threatened to kill her, allegations she later recanted. The Southerland children also complained of abusive treatment by Mr. Southerland and his live-in companion, Vendetta Jones. On July 1, 1998, after a five-day trial, the Kings County Family Court found Mr. Southerland abused and neglected his children and sexually abused Ciara. The court ordered that the children remain in foster homes. "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," Judge Sack said. The lower court was wrong, Judge Sack said, in concluding that Mr. Woo's actions were shielded under the "corrected affidavit doctrine," which holds that, a corrected affidavit, containing all of the information available to Mr. Woo at the time the affidavit was made, would have supported probable cause to enter the Southerland home. And the lower court should have applied the statute as it was written at the time, Judge Sack said. New York Family Court Act 1034(2), until it was amended in 2007, stated that the affiant was required to show "probable cause to believe that an abused or neglected child may be found on premises." The children listed on Mr. Woo's application for the Order Authorizing Entry included both the Manning children and Ciara Manning, Judge Sack said, and were therefore "children who did notreside 'on premises' in the Southerland home."

Mr. Woo, he said, had reason to believe that Ciara Manning was not on the premises because of his conversations with the guidance counselor and Mr. Southerland. The plaintiffs also argued that the application omitted several facts known to Mr. Woo at the 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," he said, so that reasonable jurors could find that Mr. Woo knowingly or recklessly made misleading statements in his application. "Although this 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," he said. The circuit vacated the lower court's summary judgment ruling on the plaintiff's unlawful-search claims and vacated the finding that qualified immunity shielded Mr. Woo from liability on a procedural due process claim. The court found there was insufficient evidence in the record for it to pass judgment on a substantive due process claim under the Fourteenth Amendment, whether it was "objectively reasonable" for Mr. Woo to think Mr. Southerland's due process rights were not being violated by a brief removal of the children from the home and the factual basis on which the Family Court decided that their continued removal from the home was warranted. For similar reasons, the court also reinstated the children's Fourth Amendment claim for unlawful seizure. Michael G. O'Neill represented the plaintiff children. Sonny B. Southerland appeared pro se. Assistant Corporation Counsel Julian L. Kalkstein represented New York City.
@|Mark Hamblett can be reached at mhamblett@alm.com.

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