Doe v. Ny City Department of Social Services 642 f.2d 134

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Page 1
649 F.2d 134
(Cite as: 649 F.2d 134)
West Headnotes
United States Court of Appeals, [1] Civil Rights 78 1039

Second Circuit.
Maria DOE and Cruz Doe, individually and on be- 78 Civil Rights
half of their minor son Manuel Doe, Plaintiffs, 78I Rights Protected and Discrimination Prohib-
and ited in General
Anna Doe, Plaintiff-Appellant, 78k1030 Acts or Conduct Causing Depriva-
v. tion
NEW YORK CITY DEPARTMENT OF SOCIAL 78k1039 k. Failure to Act or Protect or to
SERVICES et al., Defendants, Enforce Law. Most Cited Cases
and (Formerly 78k117, 78k13.7)
Catholic Home Bureau, Defendant-Appellee. Government officials may be held liable under
No. 464, Docket 80-7531. Civil Rights Act for failure to do what is required
as well as for overt activity which is unlawful and
Argued Dec. 4, 1980. harmful. 42 U.S.C.A. § 1983.
Decided May 13, 1981.
[2] Civil Rights 78 1039
Foster child filed a civil rights action against place-
ment agency for failing to supervise placement ad- 78 Civil Rights
equately. The United States District Court for the 78I Rights Protected and Discrimination Prohib-
Southern District of New York, Milton Pollack, J., ited in General
held the agency not liable for alleged violations of 78k1030 Acts or Conduct Causing Depriva-
the foster child's rights. Appeal was taken. The tion
Court of Appeals, Robert L. Carter, District Judge, 78k1039 k. Failure to Act or Protect or to
sitting by designation, held that: (1) the district Enforce Law. Most Cited Cases
judge improperly explained the mental stage of (Formerly 78k117, 78k13.7)
“deliberate indifference” necessary for a finding of When individuals are placed in custody or under
liability, in that the court conveyed an impression care of government, their governmental custodians
of deliberate indifference requiring higher degree of are sometimes charged with affirmative duties, non-
knowledge, ill will and culpability than is actually feasance of which may violate Constitution. 42
the case; (2) the district judge failed to explain to U.S.C.A. § 1983.
the jury that repeated acts of negligence could be
evidence of indifference; (3) evidence that a
memorandum had been distributed reminding agen- 78 Civil Rights
cies of their duty to report instances of child abuse 78I Rights Protected and Discrimination Prohib-
should have been admitted to help establish deliber- ited in General
ate indifference; and (4) evidence of the foster 78k1030 Acts or Conduct Causing Depriva-
child's having borne a child out-of-wedlock was not tion
relevant to the action. 78k1039 k. Failure to Act or Protect or to
Enforce Law. Most Cited Cases
Reversed and remanded.
(Formerly 78k117, 78k13.4(1))
Meskill, Circuit Judge, dissented with an opinion. When official is charged with default in exercise of
responsibility in acting as custodian for individuals
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
649 F.2d 134
(Cite as: 649 F.2d 134)
placed in custody or under care of government, situation, there were obvious alternative explana-
there are two fundamental requisites for Civil tions for family being given benefit of doubt and
Rights Act liability to be imposed; first is that agency refusing to intervene. 42 U.S.C.A. § 1983.
omissions must have been substantial factor leading
to denial of constitutionally protected liberty or [6] Civil Rights 78 1439
property interest, and second is that officials in
78 Civil Rights
charge of agency being sued must have displayed
78III Federal Remedies in General
mental state of deliberate indifference in order to
78k1433 Instructions
meaningfully be termed culpable. 42 U.S.C.A. §
78k1439 k. Other Particular Cases and
1983.
Contexts. Most Cited Cases
[4] Civil Rights 78 1439 (Formerly 78k245, 78k13.14)
In civil rights action by foster child against place-
78 Civil Rights ment agency for failing to supervise placement ad-
78III Federal Remedies in General equately, district court's instruction emphasizing
78k1433 Instructions that deliberate lack of concern is state of mind dis-
78k1439 k. Other Particular Cases and tinct from mere fact of negligence or sustained in-
Contexts. Most Cited Cases action conveyed impression of deliberate indiffer-
(Formerly 78k245, 78k13.14) ence requiring higher degree of knowledge, ill will
In civil rights action by foster child against place- and culpability than was actually the case, in that it
ment agency for failing to supervise placement ad- failed to explain to the jury that repeated acts of
equately, although inaction could be basis for liabil- negligence could be evidence of indifference and
ity, district court adequately conveyed such idea to presented distorted conception of term with regard
jury in portion of its charge which required foster to relationship between negligence and deliberate
child to prove that her constitutional rights were vi- indifference. 42 U.S.C.A. § 1983.
olated by agency, by proving that agency know-
ingly and intentionally harmed foster child, or de- [7] Civil Rights 78 1439
liberately, with knowledge that she was mistreated
78 Civil Rights
in foster home, intentionally permitted this to occur
or was intentionally indifferent to whether it was
78k1433 Instructions
occurring. 42 U.S.C.A. § 1983.
[5] Civil Rights 78 1406 Contexts. Most Cited Cases
(Formerly 78k245, 78k13.14)
78 Civil Rights In civil rights action by foster child against place-
78III Federal Remedies in General ment agency for failing to supervise placement ad-
78k1400 Presumptions, Inferences, and Bur- equately, instruction that ordinary negligence, of it-
dens of Proof self, could not establish cause of action was ad-
78k1406 k. Other Particular Cases and equate as far as it went; however, in twice saying
Contexts. Most Cited Cases that if negligence occurred, agency was entitled to
(Formerly 78k240(1), 78k13.13(1)) jury's verdict and in seeming to equate violation of
In civil rights action by foster child against place- constitutional right with “deliberate mistreatment,”
ment agency for failing to supervise placement ad- district court erroneously conveyed impression that
equately, deliberate indifference was not to be in- deliberate indifference and negligence were mutu-
ferred from failure to act as readily as might have ally exclusive. 42 U.S.C.A. § 1983.
been done in prison context, since in foster care

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649 F.2d 134
(Cite as: 649 F.2d 134)
[8] Negligence 272 273 ited in General

78k1057 k. Child Custody, Support, and Pro-
272 Negligence tection; Parental Rights. Most Cited Cases
272V Heightened Degrees of Negligence (Formerly 78k117, 78k13.4(1))
272k273 k. Gross Negligence. Most Cited In civil rights action by foster child against place-
Cases ment agency for failing to supervise placement ad-
(Formerly 272k13) equately, causal link between agency's alleged fail-
Gross negligence and deliberate indifference are ure to supervise and continuation of abuse of foster
closely associated, such that gross negligent con- child was clear, in that if agency had investigated
duct creates strong presumption of deliberate indif- the child's case with sufficient acuity and diligence
ference. to discover abuse, it would have been able to pre-
vent further abuse by withdrawing her from home,
[9] Negligence 272 1725
and, therefore, key question was whether state of
272 Negligence mind was such that agency could be meaningfully
272XVIII Actions termed culpable, and for such requirement, deliber-
272XVIII(E) Instructions ate indifference rather than intentional harm is ap-
272k1725 k. Heightened Degrees of Neg- propriate yardstick. 42 U.S.C.A. § 1983.
ligence. Most Cited Cases
(Formerly 272k139(4))
Distinction between gross negligence and ordinary 78 Civil Rights
negligence is neither so marked nor so obvious in 78III Federal Remedies in General
practice that jury instructed only that negligence 78k1433 Instructions
did not state cause of action could be expected to 78k1439 k. Other Particular Cases and
surmise for itself that gross negligence would. Contexts. Most Cited Cases
(Formerly 78k245, 78k13.14)
In civil rights action by foster child against place-
78 Civil Rights ment agency for failing to supervise placement ad-
78III Federal Remedies in General equately, instruction that, in order to establish liab-
78k1433 Instructions ility, foster child would have to show that agency
78k1439 k. Other Particular Cases and had specific knowledge of mistreatment of her in
Contexts. Most Cited Cases foster home was overly limited, since actual know-
(Formerly 78k245, 78k13.14) ledge of specific harm was not only type of know-
In civil rights action by foster child against place- ledge which would suffice to show deliberate indif-
ment agency for failing to supervise placement ad- ference. 42 U.S.C.A. § 1983.
equately, district court should have instructed jury
[13] Negligence 272 1591
as to occasionally subtle, yet pivotal, distinction
between ordinary negligence and grossly negligent 272 Negligence
or reckless conduct, informing jury that only latter 272XVIII Actions
types of behavior could support foster child's 272XVIII(C) Evidence
claims. 42 U.S.C.A. § 1983. 272XVIII(C)2 Presumptions and Infer-
ences
272k1591 k. Violations of Statutes and
78 Civil Rights Other Regulations. Most Cited Cases
78I Rights Protected and Discrimination Prohib- (Formerly 272k121.1(9))

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649 F.2d 134
(Cite as: 649 F.2d 134)
The more a statute or regulation clearly mandates 78III Federal Remedies in General
specific course of conduct, the more it furnishes 78k1408 Admissibility of Evidence
plausible basis for inferring deliberate indifference 78k1414 k. Other Particular Cases and
from failure to act, even without any specific know- Contexts. Most Cited Cases
ledge of harm or risk. (Formerly 78k241, 78k13.13(2))
In civil rights action brought by foster child against
[14] Civil Rights 78 1406 placement agency for failing to supervise place-
ment adequately, exclusion of evidence pertaining
78 Civil Rights
to foster child's foster sister's abuse was erroneous,
in that foster father's actions and allegations to-
78k1400 Presumptions, Inferences, and Bur-
wards sister were relevant to agency's notice and
dens of Proof
knowledge of risk of harm to foster child.
Fed.Rules Evid. Rule 404(b), 28 U.S.C.A.
Contexts. Most Cited Cases
(Formerly 78k240(1), 78k13.13(1)) [17] Civil Rights 78 1414
For purposes of civil rights action by foster child
against placement agency for failing to supervise 78 Civil Rights
placement adequately, fact that statute imposed 78III Federal Remedies in General
strict duty on agency to report all suspected cases 78k1408 Admissibility of Evidence
of child abuse provided plausible basis for inferring 78k1414 k. Other Particular Cases and
deliberate indifference from failure to act, even Contexts. Most Cited Cases
without specific knowledge of harm or risk. 42 (Formerly 78k241, 78k13.13(2))
U.S.C.A. § 1983; N.Y.Social Services Law § 413. In civil rights action by foster child against place-
ment agency for failing to supervise placement
[15] Federal Civil Procedure 170A 1272.1 properly, district court should have admitted
memorandum of assistant commissioner reminding
170A Federal Civil Procedure
city agencies of their duty to report all suspected
170AX Depositions and Discovery
cases of child abuse, since fact that agency failed to
170AX(A) In General
report incident with foster child in face of recent re-
170Ak1272 Scope
minder that reporting must be done in all cases was
170Ak1272.1 k. In General. Most
relevant to issue of deliberate indifference. 42
Cited Cases
U.S.C.A. § 1983.
(Formerly 170Ak1272)
In civil rights action by foster child against place- [18] Civil Rights 78 1414
ment agency for failing to supervise placement ad-
equately, district court did not abuse its discretion 78 Civil Rights
to deny discovery of facts relating to cases of other 78III Federal Remedies in General
children, since prospect of agency having policy 78k1408 Admissibility of Evidence
encouraging or condoning child abuse is suffi- 78k1414 k. Other Particular Cases and
ciently remote and truly wide-ranging discovery of Contexts. Most Cited Cases
agency's practices and procedures sufficiently bur- (Formerly 78k241, 78k13.13(2))
densome.
Federal Civil Procedure 170A 2173
170A Federal Civil Procedure
78 Civil Rights 170AXV Trial

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649 F.2d 134
(Cite as: 649 F.2d 134)
170AXV(G) Instructions equately and to report her situation to the New

170Ak2173 k. Necessity and Subject Mat- York City Department of Social Services as a sus-
ter. Most Cited Cases pected case of child abuse led to the continuation of
In civil rights action by foster child against place- her mistreatment in the home.
ment agency for failing to supervise placement ad-
equately, fact that foster child had recently borne After trial by jury, verdict was entered in favor of
out-of-wedlock child was not relevant on theory defendant on the issue of liability. Plaintiff now ap-
offered by agency that child's having borne child peals, alleging error in the court's jury charge de-
showed that her capacity to perform and enjoy sex tailing the elements of liability under s 1983, and in
was not greatly harmed by her abuse in foster several of its evidentiary rulings. The latter in-
home, and, therefore, foster child was entitled to cludes admitting into evidence testimony that
have cautionary instruction to jury that her having plaintiff had recently had an out-of-wedlock child
had out-of-wedlock child, or, for that matter, any and refusing to give plaintiff's requested instruction
sort of sexual conduct, should not be taken as bear- that inferences about plaintiff's sexual conduct
ing on credibility. 42 U.S.C.A. § 1983. should not be taken as bearing on her credibility.
*136 Carolyn A. Kubitschek, New York City, Mi- Plaintiff also claims error in the exclusion of testi-
chael D. Kaufman, Louise Gruner Gans, Edward mony pertaining to abuse suffered by her foster sis-
Simon, Catherine P. Mitchell, New York City, for ter under circumstances similar to those of plaintiff
plaintiff-appellant. and the exclusion of portions of a memorandum
from the Assistant Commissioner of Social Ser-
Frederick J. Magovern, New York City, Peter B. vices, reminding defendant to report all cases rais-
Skelos, New York City, for defendant-appellee. ing any suspicion of child abuse.
Before OAKES and MESKILL, Circuit Judges, and Background Facts

CARTER, District Judge.[FN*]
There is substantial agreement as to most of the un-
derlying facts of the case. Anna was born in April,
FN* Of the Southern District of New 1961 and, when she was two years old, was placed
York, sitting by designation. in foster care along with her sister Evelyn, in the
legal custody of the New York City Commissioner
ROBERT L. CARTER, District Judge: of Welfare. The Commissioner arranged for ap-
pellee Catholic Home Bureau to supervise the care
Appellant Anna Doe brought this action pursuant to of Anna and her sister, beginning January 5, 1964,
42 U.S.C. s 1983 seeking redress*137 for the viola- and pursuant to this duty, the Bureau placed both
tion under color of state law of her First, Fourth, girls in the home of Frank and Josephine Senerchia,
Fifth, Ninth and Fourteenth Amendment rights. The whom it had investigated and certified on Septem-
source of her complaint was the various forms of ber 30, 1963. In 1965, the Bureau placed two addi-
child abuse, allegedly by rape, severe beating, and tional girls, Lynn and Annette Wong in the Sener-
forcible withdrawal from school, inflicted on her by chia home.
her foster father in the foster home in which she
was placed. She seeks monetary damages from the The Bureau's duties did not end with placement,
Catholic Home Bureau, the agency which placed however. As a placement agency, it was charged by
her in the home and was charged with the duty of state law with the task of periodically inspecting
supervising her foster care. She alleges that the and annually recertifying the Senerchia home. (
agency's failure to supervise her placement ad- New York Social Services Law ss 376, 378)

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(Cite as: 649 F.2d 134)
(McKinney). Its alleged failure to perform this duty chia in bed together. All foster children were re-
is the gravamen of plaintiff's complaint. moved from the Senerchia home shortly thereafter.
It is uncontested that Anna remained in the Sener- From 1964 through July, 1977, the Bureau had an-
chia home for more than thirteen years and that ini- nually evaluated and approved the Senerchia house-
tially the family environment appeared to be a hold as a foster home for Anna. Notwithstanding
promising one. The Senerchias had come well re- this supervision, the Bureau never became aware of
commended by the parish priest, physician, neigh- the extent of Anna's abuse until August, 1977, after
bors, friends and Frank Senerchia's employer. As six years of it had elapsed. Plaintiff contends that
part of its investigation and decision to certify the the agency's failure to discover the abuse to which
home, the Bureau prepared a report which de- she had been subjected for some six years before
scribed Senerchia, a New York City policeman, as defendant acknowledged that something was wrong
“a pleasant man, quite ordinary in achievements, was due, at least in part, to its failure to make a
(but) reliable, helpful and endowed with Christian thorough periodic investigation of her circum-
Charity,” and as someone “genuinely fond of chil- stances and to comply with its statutory duties.
dren and (having) a genuine paternalistic interest in
them.” Frank Senerchia expressed the view that Plaintiff maintains that as she grew older, visits to
corporal punishment was sometimes good for chil- the home by the agency's case workers declined in
dren, but did not believe that spanking “should be frequency, so that between 1968 and 1972, for ex-
the one and only course for parents.” ample, there were periods, once two and a half
years and once fourteen months, when no one from
In spite of this hopeful beginning, the record dis- the agency visited the Senerchia home, whereas the
closes a pattern of persistent cruelty to Anna at the previous and usual pattern had been four or five
hands of her foster father. Anna and her foster sis- home visits a year. Defendant maintains that addi-
ters testified that starting when she was about ten tional contacts outside the home compensated for
years of age, she was regularly and frequently any shortage of visits. It is uncontested, however,
beaten and sexually abused by Senerchia. Plaintiff that when agency workers did visit the home, dis-
testified that he beat her with his hands and belt all cussions were almost invariably conducted in the
over her body, threw her down the stairs, and on presence of Senerchia. Plaintiff contends that this
one occasion lacerated her with a hunting knife, inhibited discussion of her relations with her foster
that he confined her to her room for days at a time, father since heeding his repeated threats to have her
and ultimately forced her to have intercourse and institutionalized, she made no mention of being
oral sexual relations with him. mistreated.
*138 Plaintiff further testified that her father Although one case worker had expressed suspicion
threatened to institutionalize her if she ever told in 1967 that Senerchia might have “severe emotion-
anyone what he was doing and that when a priest, al problems,” most Bureau personnel continued to
whom her foster sister Lynn had contacted, attemp- give the home a favorable rating in spite of nagging
ted to discuss allegations of child abuse with Sener- suspicions that the father was excessively involved
chia, Lynn was severely beaten for contacting the with intimate details of the girls' personal hygiene,
priest. Family members were afraid of Senerchia and after 1973 had become increasingly resistant to
and did not directly inform the Catholic Home Bur- the agency's supervision. A 1976 report found him
eau of the abuses until August, 1977, when to be “resistive to intervention by agency workers
Josephine Senerchia, having been told that her hus- (and) difficult to schedule appointments with.”
band was planning to seek a divorce, advised
agency workers that she had found Anna and Sener- The agency's 1975 annual reauthorization report to

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649 F.2d 134
(Cite as: 649 F.2d 134)
the City of New York Human Resources Adminis- assess her learning skills and determine appropriate
tration described efforts to see Anna alone as hav- school placement. On February 18, 1975, at a con-
ing “proved futile due to the foster family's attitude ference with Senerchia and Anna, the agency in-
towards the agency.” formed them that to get a special class placement
Anna would need to see a psychiatrist and for this
In early January, 1975, the Bureau received its first purpose an appointment was made with Dr. Lois
clear tangible evidence of things going awry with Bellinger deAlvarado. It was also decided that the
Anna when she was removed from school by her foster parents should be seen by a psychiatrist as
father without the agency's knowledge or consent. well, but this decision was never implemented. On
March 19, Anna met with Dr. deAlvarado, an ex-
On January 7, the agency, after discovering that
pert in child abuse, who based on Anna's responses
Anna had been removed from school, questioned
and the other information she had received, con-
Senerchia and was told that Anna had been engaged
cluded that Anna was sexually involved with her
extensively in group sex with the other children at
foster father and should be immediately removed
school, that this had gone on since the first grade,
from the foster home. That same day Dr. deAl-
and had included full sexual intercourse, even
varado met with agency officials and “related that
between first-graders. The children's sexual con-
she felt the foster father was sexually involved”
gress, they were told, took place in empty
with Anna, and she should be immediately removed
classrooms, hallways and cafeteria, and occurred
from the home through legal action if necessary.
four or five times a day. Senerchia claimed that
Dr. deAlvarado testified at the trial that Anna did
Anna had told him she would be forced to resume
not admit to having sexual relations with her father
sexual activities when she returned to school, and
but became unresponsive and began crying when
for that reason he was enrolling Anna in a parochial
the question was asked.
school.
The Bureau responded by holding an administrative
Three days later agency workers met with Anna. It
review on April 10, 1975. Present were agency ad-
is conceded that Anna, claiming that her father had
ministrative personnel and the case worker. It was
told her never to talk about such matters with any-
decided that Senerchia's “involvement with Anna
one, repeatedly refused to discuss the incident with
should be further investigated.” However, no action
them. Top agency personnel decided that Anna
appears to have been taken other than to have Dr.
should be seen by the agency psychologist, Dr.
deAlvarado revise her report, deleting the refer-
Selma Lewis. Dr. Lewis accepted as true the allega-
ences to sexual involvement with Senerchia. On
tions of Anna's sexual behavior with classmates,
April 14, 1975, the case worker spoke to the truant
characterized*139 Senerchia as a warm and sym-
officer, who said he thought the stories of orgies in
pathetic foster father, and concluded that Anna was
Anna's former school were unfounded. On April 16,
“secure in the protectiveness and caring of her
1975, the principal of the school informed the case-
foster parents.” However, agency records show that
worker that he had checked the records and found
the scope of her investigation was limited. She had
that Anna had not missed any of her classes prior to
not read the background report on Senerchia, and
being removed from school. That day the worker
neither she nor other agency personnel contacted
called Senerchia to discuss this new information,
school authorities until the truant officer was inter-
but he said he was ill, and the meeting was put off.
viewed in mid-April.
He was not seen until May 12, 1975, when the Bur-
Anna remained out of school throughout January eau conducted its first home visit since December,
and continuing through June, 1975. She met for a 1974. On that visit Senerchia related to the social
second time with Dr. Lewis on January 24, 1975, to worker a version of Anna's sexual activity that var-

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649 F.2d 134
(Cite as: 649 F.2d 134)
ied greatly from what the Bureau had been told pre- later and did not encompass inquiries to ascertain
viously. Although with this additional information whether Senerchia was involved sexually with
the agency may have had growing reason to doubt Anna.
the veracity of Senerchia's original charges, it chose
not to follow or act upon Dr. deAlvarado's profes- In July of 1977, Senerchia told the agency that he
sional recommendation. It continued to allow Anna was planning to divorce his wife to marry his preg-
to remain in the foster home and neglected to file a nant seventeen year old girlfriend. This news con-
report of suspected child abuse with the Department cerned agency personnel but nothing was done until
of Social Services as was required by state law. a month later when Josephine Senerchia, on learn-
ing of her husband's plans for divorce, made her
On May 17, 1975, the Board of Education had disclosure to Bureau officials.
Anna evaluated by one of its psychiatrists. The
agency sent the Board a copy of Dr. deAlvarado's
Proceedings in the District Court
edited report from which all references to suspected
sexual abuse had been deleted. No information was Appellant filed suit [FN1] on April 11, 1979, and
supplied about Senerchia or his problems, and the trial was noticed for May 12, 1980. A major pretrial
psychiatrist was not asked to, and did not investig- substantive issue was the propriety of the court's
ate the possibility of Anna's sexual abuse. barring discovery concerning the policies, proced-
ures, practices and customs of the defendant with
In June, 1975, the agency submitted its annual re-
respect to incidents of child abuse in foster homes,
port to the Department of Social Services. Neither
selection and recertification of foster parents, su-
in this report nor at other times thereafter did the
pervision of foster homes and the actions defendant
Bureau inform the Department of Anna's six month
regularly took to protect foster children from mal-
absence from school, her supposed sexual proclivit-
treatment. At a conference on April 24, 1980, the
ies, the problems in the foster home or Dr. deAl-
court ruled that the agency's employees did not
varado's report and recommendations, although de-
have to answer questions about agency procedures
fendant's supervisory personnel admit that it was
and policies. On May 1, 1980, plaintiff moved to
mandated that such information be shared with the
lift the discovery restrictions on the policy and
Department.
practice issue and for a postponement of trial to
After May, 1975, home visits occurred more regu- permit time to adduce the previously prohibited dis-
larly, but by February, 1976, the *140 Senerchias covery. The court denied the motion in all respects.
were again resisting this regularized supervision. On May 13, 1980, plaintiff filed a petition for a writ
Later in 1976, an incident occurred concerning of mandamus in this court asserting that the limita-
sexual activities of Anna's foster sister Lynn, that tions on discovery and the procedure utilized by the
bore resemblance to the previous incident involving court constituted a usurpation of judicial authority
Anna. in contravention of the Federal Rules of Civil Pro-
cedure. The petition was denied the following day.
On February 10, 1977, an agency supervisor sent a
memorandum to Anna's current caseworker stating FN1. This action was originally com-
that a confrontation with the Senerchias could no menced by Maria and Cruz Doe individu-
longer be put off. As had been recommended by Dr. ally and on behalf of their minor children
deAlvarado two years earlier, a psychiatric inter- Anna Doe and Manuel Doe, seeking dam-
view with Dr. Emil Piana, the agency's head psy- ages on the basis of three distinct legal
chiatrist, and the Senerchias was scheduled. The in- claims against the New York City Depart-
terview with Dr. Piana did not occur until a month ment of Social Services and its former

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649 F.2d 134
(Cite as: 649 F.2d 134)
commissioners, the Catholic Home Bur- report to the Department all suspected cases of ab-
eau, and other institutional and individual use. The district court admitted only that portion of
defendants. Plaintiffs reached a settlement the memorandum which cited the New York Social
on their s 1983 claims with all the defend- Services Law and excluded those segments of the
ants except the Catholic Home Bureau and document which on the basis of recent observations
its caseworkers. The claims against the lat- asserted that agencies were not meeting their re-
ter were dismissed for failure of service of porting responsibility and stressed the importance
process. Manuel Doe's claim against the of reporting every case.
Catholic Home Bureau was dismissed at
trial, and this dismissal is not being ap- At the conclusion of plaintiff's case the court dis-
pealed. Plaintiffs' claim, based on the man- missed the claim of a second plaintiff, Manuel Doe,
ner in which Maria and Cruz Doe were in- but allowed appellant's case to go to the jury. After
duced to surrender their children, and their the court charged the jury, appellant objected to
claim, based on the agency's failure to that portion of the court's charge which revealed
provide federally mandated services, were that she had conceived a child out-of-wedlock, and
withdrawn. Plaintiffs' pendent state claims she requested that the jury be instructed that this
were dismissed by the trial court on the fact had no bearing on the issue of credibility. She
morning of trial, and there is no appeal also objected to the court's instruction that the jury
from that dismissal. On this appeal the sole must find that defendant actually intended to harm
appellant is Anna Doe, the Catholic Home the plaintiff or have had actual knowledge of the
Bureau is the sole appellee, and only those harm being inflicted on her, before it could prop-
claims brought under s 1983 are before the erly hold the Bureau liable.
court.
The court refused to alter its instructions and appel-
The case then proceeded to trial before a jury on lant claims error. We now reverse.
May 19, 1980, and concluded eight days thereafter
when the jury returned a verdict in favor of defend- Determination
ant. At trial plaintiff had sought to present the de-
position [FN2] of Stella Rose Gambino, Director of
Social Work for the agency. The court refused to A
admit those portions of the deposition into evidence
which concerned allegations by the foster father in Requirements for s 1983 liability
the fall of 1976 of the sexual promiscuity of appel-
lant's foster sister.
[1][2] Government officials may be held liable un-
FN2. Stella Rose Gambino was unavail- der s 1983 for a failure to do what is required as
able at trial due to pressing and unforeseen well as for overt activity which is unlawful and
business in South America. Plaintiff sought harmful. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct.
to present portions of her deposition in lieu 285, 50 L.Ed.2d 251 (1976); Martinez v. Mancusi,
of her testifying. 443 F.2d 921 (2d Cir. 1970), cert. denied, 401 U.S.
983, 91 S.Ct. 1202, 28 L.Ed.2d 335 (1971); Holmes
Plaintiff also attempted to introduce into evidence a v. Goldin, 615 F.2d 83 (2d Cir. 1980); Duchesne v.
memorandum from Carol Parry, Assistant Commis- Sugarman, 566 F.2d 817, 822 (2d Cir. 1977)
sioner of the Department of Social Services for (“where conduct of the supervisory authority is dir-
Special Services for Children directed to Voluntary ectly related to a denial of a constitutional right, it
Child Care *141 Agencies concerning their duty to

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649 F.2d 134
(Cite as: 649 F.2d 134)
is not to be distinguished as a matter of causation, Appellant's stronger claim concerns the court's ex-
upon whether it was action or inaction”). When in- planation of the mental state of “deliberate indiffer-
dividuals are placed in custody or under the care of ence” necessary for a finding of liability.
the government, their governmental custodians are
sometimes charged with affirmative duties, the non- [5] In applying the standard of deliberate indiffer-
feasance of which may violate the constitution. ence to agency supervision of a *142 foster home,
Thus, non-performance of such custodial duties has the district court faced an unusually troublesome
been held to give rise to s 1983 cause of action for task. The yardstick has hitherto been applied to the
prisoners. Estelle v. Gamble, supra. supervision of wardens, police chiefs and hospital
administrators over subordinate officials within
[3] When an official is charged with default in ex- their institutions. See e. g., Martarella v. Kelley,
ercise of the above affirmative responsibility, there 349 F.Supp. 575 (S.D.N.Y.1972) (Lasker, J.), mod-
are two fundamental requisites for s 1983 liability ified in 359 F.Supp. 478 (1973); N. Y. S. Assn. for
to be imposed. The first is that the omissions must Retarded Children, Inc. v. Rockefeller, 357 F.Supp.
have been a substantial factor leading to the denial 752 (E.D.N.Y.1973); Williams v. Vincent, 508 F.2d
of a constitutionally protected liberty or property 541 (2d Cir. 1974); Turpin v. Mailet, 579 F.2d 152
interest. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. (2d Cir. 1978); Turpin v. Mailet, 619 F.2d 196 (2d
598, 46 L.Ed.2d 461 (1976). The second is that the Cir. 1980); Wright v. McMann, 460 F.2d 126 (2d
officials in charge of the agency being sued must Cir.), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34
have displayed a mental state of “deliberate indif- L.Ed.2d 141 (1972); United States ex rel. Larkins v.
ference” in order to “meaningfully be termed culp- Oswald, 510 F.2d 583 (2d Cir. 1975). However, the
able” under s 1983. Turpin v. Mailet, 579 F.2d relationship of a foster care agency to the families it
152, 166 (2d Cir.) (Turpin I), vacated sub nom. licenses differs in two fundamental respects from
West Haven v. Turpin, 439 U.S. 974, 99 S.Ct. 554, supervisory situations in the cases cited above.
58 L.Ed.2d 645 (1978), on remand Turpin v.
Mailet, 591 F.2d 426 (2d Cir. 1979) (Turpin II); There is a closer and firmer line of authority run-
Turpin v. Mailet, 619 F.2d 196 (2d Cir.) (Turpin ning from superiors and subordinates within an in-
III), cert. denied, sub nom. Turpin v. West Haven, - stitution than exists in the foster care context, par-
U.S. -, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). ticularly in respect of the relationship between
agency personnel and the foster parent. Institutional
[4] Although inaction can be a basis for liability un- administrators can readily call in subordinates for
der s 1983, we find that the court adequately con- consultation. They can give strict orders with reas-
veyed this idea to the jury in the portion of its onable assurance that their mandates will be fol-
charge which read: lowed, and as added insurance other employees sta-
tioned in proximity of the subordinates to whom or-
As I've told you during the trial, this is a federal ders are directed may be instructed to monitor com-
case, in which plaintiff must prove that her con- pliance.
stitutional rights were violated by the Bureau.
That requires the plaintiff to prove that the de- By contrast, the Catholic Home Bureau had to rely
fendant knowingly and intentionally harmed the upon occasional visits for its information gathering,
plaintiff, or deliberately, with knowledge that she and its relationship to the foster family was less un-
was being mistreated in the foster home, inten- equivocally hierarchical than is the case with prison
tionally permitted this to occur or were (sic) in- guards and a warden. There is evidence that the
tentionally indifferent to whether it was occur- foster father made information-gathering difficult
ring. for the agency, and its officials were at a loss over
how to deal with him.

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649 F.2d 134
(Cite as: 649 F.2d 134)
In part this was because the agency felt constrained do not constitute violation of a constitutional
to respect the foster family's autonomy and integ- right. If that occurred, the defendant is entitled to
rity and pressured to minimize intrusiveness, given your verdict.
its goal of approximating a normal family environ-
ment for foster children. After the charge was read, the jury passed a note to
the judge asking, “As a *143 legal question, is not
These differences suggest that deliberate indiffer- investigating a situation thoroughly a denial of
ence ought not to be inferred from a failure to act as one's constitutional rights?” This question was
readily as might be done in the prison context, since answered by repeating substantially verbatim the
in the foster care situation, there are obvious altern- above portion of the charge.
ative explanations for a family being given the be-
nefit of the doubt and the agency refusing to inter- The court's charge and response to the jury were
vene. Among these in this case were, by all appear- correct insofar as they stated that ordinary negli-
ances, Anna Doe's satisfactory adjustment in her gence by itself could not establish a cause of action
foster home and her desire to be adopted by the under s 1983.[FN3] New York Assn. for Retard.
Senerchias. Children, Inc. v. Rockefeller, 357 F.Supp. 752, 765
(E.D.N.Y., 1973); Corby v. Conboy, 457 F.2d 251
[6] However, the defendant at trial failed to give (2d Cir. 1972); Holmes v. Goldin, 615 F.2d 83, 85
sufficient focus to such alternative motivation for (1980); Johnson v. Glick, 481 F.2d 1028, 1033 (2d
inaction. The court, therefore, faced a dilemma. It Cir. 1973). However, in twice saying that if negli-
could instruct the jury as to the normal reasoning gence occurred, defendant was entitled to the jury's
processes by which indifference is inferred from in- verdict and in seeming to equate violation of a con-
action in other contexts and face the risk that the stitutional right with “deliberate mistreatment,” the
jury would draw such inferences more automatic- court erroneously conveyed the impression that de-
ally than was appropriate. On the other hand, the liberate indifference and negligence were mutually
court could stress the distinction between a failure exclusive.
to act and a deliberate lack of concern, by emphas-
izing that the latter is a state of mind distinct from FN3. The Supreme Court has twice ex-
the mere fact of negligence or sustained inaction. pressly left open the question of whether
The court chose the second course but, in the pro- simple negligence will suffice to establish
cess, conveyed an impression of deliberate indiffer- liability for damages under s 1983. Pro-
ence requiring a higher degree of knowledge, ill- cunier v. Navarette, 434 U.S. 555, 98 S.Ct.
will and culpability than is actually the case. It 855, 55 L.Ed.2d 24 (1978); Baker v. Mc-
failed to explain to the jury that repeated acts of Collan, 443 U.S. 137, 99 S.Ct. 2689, 61
negligence could be evidence of indifference and L.Ed.2d 433 (1979). This circuit has ten-
presented a distorted conception of the term with ded in dicta to declare that simple negli-
regard to the relationship between negligence and gence is insufficient, see authorities cited
deliberate indifference. in text, but on at least one occasion has ex-
pressed doubt as to whether the issue is
[7] The court charged the jury that: closed. Holmes v. Goldin, 615 F.2d 83,
85 (1980).
In a federal court case, negligent care or negli-
gent oversight by a child care agency or foster For purposes of deciding this appeal we
parents does not prove a claim for deliberate mis- assume that simple negligence does not
treatment, does not prove a constitutional claim. establish a cause of action under s 1983.
Negligence or carelessness or unintentional fault

Page 12
649 F.2d 134
(Cite as: 649 F.2d 134)
[8] On repeated occasions this court has drawn at- “gross negligence” has been held equi-
tention to the close affinity of the concepts, gross valent to the words “reckless and wan-
negligence and deliberate indifference. While the ton,” see, e. g., Jones v. Commonwealth,
two have occasionally been equated in dicta, see 213 Ky. 356, 281 S.W. 164, 167 (1926),
Owens v. Haas, 601 F.2d 1242, 1246, 1247 (2d and the Supreme Court in Estelle v.
Cir.), cert. denied, sub nom. County of Nassau v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50
Owens, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d L.Ed.2d 251 (1976), has characterized
407 (1979); Turpin v. Mailet, supra, 619 F.2d at deliberate indifference as “the wanton
202 (Turpin III), they are not literally coextensive. infliction of unnecessary pain.” Id. at
One is a type of conduct, and the other a state of 105, 97 S.Ct. at 291.
mind. Nevertheless, the two are closely associated,
[FN4] such that gross negligent conduct creates a Jones v. Commonwealth was later over-
strong presumption of deliberate indifference. ruled on grounds unrelated to the defini-
Owens v. Haas, supra; Turpin III, supra, 619 F.2d tion for which it is cited. See Owens v.
at 202. While this presumption is at least theoretic- Commonwealth, 487 S.W.2d 897
ally rebuttable, the fact that there can be instances (Ky.1972).
where glaring negligence may not constitute delib-
[9][10] The distinction between gross negligence
erate indifference does not mean that a fact finder is
and ordinary negligence is neither so marked nor so
barred from equating negligence of a certain dimen-
obvious in practice that a jury instructed only that
sion with deliberate indifference. In other contexts
negligence did not state a cause of action could be
where a fiduciary duty is imposed, evidence of
expected to surmise for itself that gross negligence
grossly negligent conduct establishes the mental
would. Cf. Ferrara v. Sheraton McAlpin Corpora-
state requisite for imposition of liability. Cf. Rolf v.
tion, 311 F.2d 294 (2d Cir. 1962) (failure to instruct
Blyth, Eastman Dillon & Co., 570 F.2d 38, 44-47
jury regarding meaning of a term of art is grounds
(2d Cir. 1978) (where fiduciary duty owed to a de-
for reversal when term constitutes an essential *144
frauded party, recklessness satisfies the scienter re-
element of the case). The court should have instruc-
quirement of s 10(b) and Rule 10b-5 of the Securit-
ted the jury as to the occasionally subtle yet pivotal
ies and Exchange Act), cert. denied, 439 U.S. 1039,
distinction between ordinary negligence and grossly
99 S.Ct. 642, 58 L.Ed.2d 698 (1979), after remand,
negligent or reckless conduct, informing them that
637 F.2d 77 (2d Cir. 1980).
only the latter types of behavior could support
FN4. The close association is captured by a plaintiff's claims.[FN5]
longstanding definition of “gross negli-
FN5. The difficulty of the district court's
gence” provided by the Massachusetts Su-
task was magnified by plaintiff's having re-
preme Judicial Court:
quested an instruction which seemingly
(Gross negligence is an) indifference to equated “deliberate indifference” with
present legal duty and utter forgetfulness simple negligence. Plaintiff's requested in-
of legal obligations, so far as other per- struction read in part:
sons may be affected, (and) a manifestly
In order to find fault or liability on the
smaller amount of watchfulness and cir-
part of the defendant Catholic Home
cumspection than the circumstances re-
Bureau you must find that the Catholic
quire of a person of ordinary prudence.
Home Bureau acted or failed to act with
Burke v. Cook, 246 Mass. 518, 141 N.E. deliberate indifference. This means that
585, 586 (1923). Traditionally the term before the Catholic Home Bureau can be

Page 13
649 F.2d 134
(Cite as: 649 F.2d 134)
found liable you must find that the Bur- F.Supp. 1130, 1136 (D.Conn.1978) (Newman, J.)
eau through its employees, including su- (distinguishing between cases where action is
pervisory employees, was aware or knew claimed to be required to remedy a specific situ-
of an unreasonable, serious risk of harm ation and cases where action is claimed to be re-
to plaintiff Anna (Doe) and that the de- quired to prevent the next in a series of isolated
fendant Catholic Home Bureau through episodes). The key question is whether the state of
its employees, including supervisory em- mind was such that the agency may be
ployees, failed to take the steps that a “meaningfully termed ‘culpable,’ ” Turpin I, supra,
reasonable person, individual or corpora- 579 F.2d at 166, and for this requirement,
tion, in its position would have taken to “deliberate indifference” rather than intentional
eliminate this danger, taking into consid- harm is the appropriate yardstick.
eration all of the circumstances in this
case. FN6. A wanton act is “one done in reckless
or callous disregard of, or indifferent to,
Insofar as this requested instruction the rights of one or more persons.” 3 De-
equated “deliberate indifference” with vitt & Blackmar, Federal Jury Practice In-
the “reasonable person” standard associ- structions, s 85.11.
ated with simple negligence, the district
court was correct in rejecting it. Defendant argues that plaintiff is pre-
cluded from raising the issue of deliber-
[11] Similarly, the court erred in charging the jury ate indifference versus intentional harm
that, “the plaintiff must prove that the defendant in- by her own requested jury instruction on
tended the actions or failures to act of the Senerchi- which the court relied. This instruction
as, and did so deliberately and voluntarily, and that read in part:
this proximately caused the mistreatments com-
plained of.” The distinction between wantonness or Plaintiff must establish that defendant
indifference on the one hand, and ill-will or the af- ‘knowingly and intentionally’ did the ac-
firmative acquiescence in mistreatment on the other tion or omission which plaintiff asserts
is well established.[FN6] In cases dealing with po- violated her rights. This means that
lice brutality, a mere lack of responsiveness to cit- plaintiff must prove that defendant inten-
izen complaints sometimes has been held insuffi- ded the action or failures to act and did
cient to establish a causal link between supervisory them deliberately and voluntarily.
inaction and subsequent instances of brutality.
Although the requested instruction is
Turpin III, supra, at 203-04; Rizzo v. Goode, supra.
somewhat confusing, its thrust appears
The liability of the police department itself has de-
to be that defendant must have intended
pended upon a showing of condonation or tacit en-
its own failure to supervise, that is, its
couragement of misconduct. Defendant argues that
own omissions vis-a-vis the Senerchia
this standard should be applied here as well.
foster home. The court's charge to the
However, in this case the causal link between the
jury went considerably beyond this in
agency's alleged failure to supervise and the con-
stating that
tinuation of Anna's abuse is clear. If the agency had
investigated Anna's case with sufficient acuity and the plaintiff must prove that the defend-
diligence to discover the abuse, it would have been ant intended the actions or failures to act
able to prevent further abuse by withdrawing her of the Senerchias, and did so deliberately
from the home. Cf. Smith v. Ambrogio, 456 and voluntarily, and that this proxim-

Page 14
649 F.2d 134
(Cite as: 649 F.2d 134)
ately caused the mistreatments com- in order to recover, must establish with
plained of. credible evidence, believable evidence,
that the defendant on trial knowingly and
[12] The district court instructed the jury that to es- intentionally closed its eyes to and per-
tablish liability plaintiff would have to show that mitted or knowingly and intentionally
the agency had specific knowledge of Anna's mis- caused the mistreatment which the
treatment in the foster home.[FN7] Stated most plaintiff says violated her rights
generally, *145 the requirement of deliberate indif-
ference is that the defendant be “deliberately indif- By using the phrase “knowingly and in-
ferent to plaintiff's welfare.” Holmes v. Goldin, tentionally closed its eyes to and permit-
supra, 615 F.2d at 85. Of course, such indifference ted,” the court implied a requirement of
cannot exist absent some knowledge triggering an actual knowledge.
affirmative duty to act on plaintiff's behalf, but ac-
tual knowledge of a specific harm is not the only In other cases, defendants have been “charged with
type of knowledge that will suffice. Defendants knowledge” of unconstitutional conditions when
may be held liable under s 1983 if they, or in the they persistently violated a statutory duty to inquire
case of an agency, its top supervisory personnel, about such conditions and to be responsible for
exhibited deliberate indifference to a known injury, them. Wright v. McMann, 460 F.2d 126 (2d Cir.
a known risk, or a specific duty, and their failure to 1972); United States ex rel. Larkins v. Oswald, 510
perform the duty or act to ameliorate the risk or in- F.2d 583 (2d Cir. 1975).
jury was a proximate cause of plaintiff's deprivation
These cases are best understood not as imposing
of rights under the Constitution. In Owens v. Haas,
strict liability under s 1983 for failure to perform
supra, 601 F.2d at 1246 the circuit stated that “a
statutory duties, but as inferring deliberate uncon-
mere failure by the county to supervise its employ-
cern for plaintiffs' welfare from a pattern of omis-
ees would not be sufficient to hold it liable under s
sions revealing deliberate inattention to specific du-
1983 (but that) the county could be held liable if
ties imposed for the purpose of safeguarding
failure to supervise or the lack of a proper training
plaintiffs from abuse. See Duchesne v. Sugarman,
program was so severe as to reach the level of
566 F.2d 817, 832 n.31 (2d Cir. 1977).
‘gross negligence’ or ‘deliberate indifference’ to
the deprivation of plaintiff's constitutional rights.” [13][14] For these reasons it is far from irrelevant
This was so regardless of whether county officials that New York Social Services Law s 413
were aware of the specific deprivations while they (McKinney) imposed a strict duty on the agency to
were being administered by subordinates. report all suspected cases of child abuse to the De-
partment of Social Services. [FN8] The district
FN7. The court's charge read in pertinent
court's instruction*146 implying lack of relevance
parts:
was error. [FN9] The more a statute or regulation
(Plaintiff must) prove that the defendant clearly mandates a specific course of conduct, the
knowingly and intentionally harmed the more it furnishes a plausible basis for inferring de-
plaintiff or deliberately, with knowledge liberate indifference from a failure to act, even
that she was being mistreated in the without any specific knowledge of harm or risk.
foster home, intentionally permitted this This is because failure to undertake a specific
to occur or were (sic) intentionally indif- course of action in vindication of a general duty can
ferent to whether it was occurring reasonably be attributed to a bona fide difference of
opinion as to how the duty should be performed.
In short, the plaintiff in this type of case, However, no such alternative explanation for non-

Page 15
649 F.2d 134
(Cite as: 649 F.2d 134)
feasance can be raised where the task mandated is Reports of suspected child abuse or mal-
specific and unequivocal. The duties imposed by s treatment made pursuant to this title
413 of the Social Services Law were of the latter shall be made immediately by telephone
character, particularly in conjunction with Commis- and in writing within forty-eight hours
sioner Parry's memorandum stressing the import- after such oral report. Oral reports shall
ance of strict compliance. [FN10] be made to the statewide central register
of child abuse and maltreatment unless
FN8. s 413 of the Social Services Law the appropriate local plan for the provi-
read: sion of child protective services provides
that oral reports should be made to the
The following persons and officials are
local child protective service. In those
required to report or cause a report to be
localities in which oral reports are made
made in accordance with this title when
initially to the local child protective ser-
they have reasonable cause to suspect
vice, the child protective service shall
that a child coming before them in their
immediately make an oral or electronic
professional or official capacity is an ab-
report to the statewide central register.
used or maltreated child: any physician,
Written reports shall be made to the ap-
surgeon, medical examiner, coroner,
propriate local child protective service in
dentist, osteopath, optometrist, chiro-
a manner prescribed and on forms sup-
practor, podiatrist, resident, intern, re-
plied by the commissioner. Such reports
gistered nurse, hospital personnel en-
shall include the following information:
gaged in the admission, examination,
the names and addresses of the child and
care or treatment of persons, a Christian
his parents or other person responsible
Science practitioner, school official, so-
for his care, if known; the child's age,
cial services worker, day care center
sex and race; the nature and extent of the
worker or any other child care or foster
child's injuries, abuse or maltreatment,
care worker, mental health professional,
including any evidence of prior injuries,
peace officer or law enforcement offi-
abuse or maltreatment, including any
cial. Whenever such person is required
evidence of prior injuries, abuse or mal-
to report under this title in his capacity
treatment to the child or his siblings; the
as a member of the staff of a medical or
name of the person or persons respons-
other public or private institution,
ible for causing the injury, abuse or mal-
school, facility, or agency, he shall im-
treatment, if known; family composition;
mediately notify the person in charge of
the source of the report; the person mak-
such institution, school, facility, or
ing the report and where he can be
agency, or his designated agent, who
reached; the actions taken by the report-
then also shall become responsible to re-
ing source, including the taking of pho-
port or cause reports to be made.
tographs and x-rays, removal or keeping
However, nothing in this section or title
of the child or notifying the medical ex-
is intended to require more than one re-
aminer or coroner; and any other inform-
port from any such institution, school or
ation which the commissioner may, by
agency.
regulation, require, or the person making
The specificity of the duty under s 413 is the report believes might be helpful in
further highlighted by s 415 which reads: the furtherance of the purposes of this
title. Written reports from persons or of-

Page 16
649 F.2d 134
(Cite as: 649 F.2d 134)
ficials required by this title to report this defendant is required to perform du-
shall be admissible in evidence in any ties and to act with the highest degree of
proceedings relating to child abuse or care.
maltreatment.
Insofar as this passage implied that the
FN9. The instruction read: relevance of the Social Services Law
was in its holding the Catholic Home
The Catholic Home Bureau is not to be Bureau to a standard of care stricter than
held liable because it did or didn't report the ordinary negligence standard the dis-
what was going on in school or else- trict court was correct in refusing to in-
where to the Department of Social Ser- corporate the request in its charge.
vices. That is no part of Anna's constitu-
tional rights. That is between the Home Another theory of relevance views the failure to re-
Bureau and the Department of Social port in the face of clear statutory instructions to do
Services. Whether they acted wisely or so, simply as evidence of an overall posture of de-
not and whether they had or did not have liberate indifference toward Anna's welfare. Under
duties to the Department of Social Ser- this theory the statute does not in and of itself fur-
vices is not the issue here. nish any basis for a finding of liability, but merely
constitutes incremental documentation of a pervas-
FN10. See note 13 infra. ive pattern of indifference.[FN12] In any event, the
reporting duty *147 imposed on the Bureau was
The duty imposed by s 413 was relevant to two sep-
highly relevant and the jury should have been so in-
arate theories of liability neither of which was ad-
structed.
equately detailed in the plaintiff's request to charge.
[FN11] By one theory the failure to report was it- FN12. The same two theories of relevance
self a proximate cause of Anna's continuing injury apply to other statutory provisions, e. g.
and could be the basis for liability if the agency's New York Social Services Law s 371, ss
failure was the result of its being deliberately un- 374-378 (McKinney), which the Catholic
concerned about whether it complied with that Home Bureau allegedly violated by neglect
duty, since reporting would have led to an investig- of duty. Similarly, the provision of the
ation by the Department's confidential investiga- New York Family Court Act s
tions unit which might well have discovered the ab- 1012(f)(i)(A) (McKinney) which defines
use and put an end to it in March, 1975. keeping a child out of school as child ab-
use, was relevant insofar as it showed that
FN11. Plaintiff's requested instruction
if the agency knew Anna was being kept
merely reiterated the provisions of the So-
out of school, and it chose not to intervene
cial Services Law and did not explain how
to correct the situation, it must presumably
those provisions were relevant to defend-
have known that it was acquiescing in a
ant's liability under s 1983. Plaintiff's re-
form of child abuse.
quested instruction stated in part:
Defendant Catholic Home Bureau per- Evidentiary and Discovery Rulings

forms an important public function when
it assumes custody of children from the [15] Prior to trial a dispute arose over whether
Commissioner of Social Services of the plaintiff would be allowed discovery of the
City of New York, and I charge you that agency's policies, practices and procedures in at-

Page 17
649 F.2d 134
(Cite as: 649 F.2d 134)
tempting to ensure protection of foster children un- Anna's, since the foster father's actions and allega-
der its supervision. The court allowed liberal dis- tions toward the sister were relevant to the agency's
covery of facts pertaining directly to Anna Doe's notice and knowledge of risk of harm to Anna. Rule
case, but denied discovery of facts relating to the 404(b) Fed.R.Ev. (similar acts admissible to show
cases of other children. Appellant argues that the knowledge). While the agency's failure to discover
court's ruling was prejudicial in that it foreclosed a the sister's abuse would be by no means dispositive
possible avenue of recovery based on official policy of whether the agency was deliberately indifferent
of the agency. Monell v. Dept. of Social Services, in Anna's case, evidence need not be conclusive in
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 order to be relevant. An incremental effect on the
(1978); Adickes v. S. H. Kress & Co., 398 U.S. probability of a jury reasonably finding deliberate
144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Turpin indifference is sufficient. Contemporary Mission,
III, supra. While appellant is correct in identifying Inc. v. Famous Music Corporation, 557 F.2d 918,
official policy as a possible basis for liability, the 927 (2d Cir. 1977). Also see Kerr v. City of Chica-
prospect of the agency having a policy encouraging go, 424 F.2d 1134, 1138 (7th Cir.), cert. denied, sub
or condoning child abuse is sufficiently remote, and nom. Mohan v. Kerr, 400 U.S. 833, 91 S.Ct. 66, 27
a truly wide-ranging discovery of agency's practices L.Ed.2d 64 (1970).
and procedures sufficiently burdensome, that it was
not an abuse of discretion for the trial judge to deny [17] Likewise, the court should have admitted the
discovery on this basis. The district court's discre- memorandum of Assistant Commissioner Parry re-
tion on questions of discovery is generally broad. minding agencies of their duty to report all suspec-
Voegeli v. Lewis, 568 F.2d 89 (8th Cir. 1977). ted cases of abuse in accordance with New York
Social Services Law s 413 (McKinney).[FN13] The
A more compelling ground for allowing limited dis- fact that the agency failed to report the incident
covery of agency action in other cases is provided with Anna in the face of a recent reminder that re-
by the rationale of Bishop v. Stoneham, 508 F.2d porting must be done in all cases is *148 relevant to
1224 (2d Cir. 1974), that a “series of incidents the issue of deliberate indifference.
closely related in time, within several months (for
example), may disclose a pattern of conduct FN13. The March 5, 1975 memorandum of
amounting to deliberate indifference ” Id. at 1226. Assistant Commissioner Parry read as fol-
On remand it would be appropriate for the trial lows:
court to consider whether appellant should be al-
Several instances of suspected child ab-
lowed additional discovery aimed at disclosing the
use which were not reported by the
circumstances of other instances of child abuse or
agency supervising a foster home, have
neglect of foster children supervised by the Cathol-
been brought to my attention. These in-
ic Home Bureau occurring in recent years, confined
stances were revealed in the course of
to such time period as the trial court deems appro-
the Independent Review (held as a result
priate. Such information conceivably could be pro-
of the 10 Day Notice of Removal of a
bative on the issues of deliberate indifference.
Foster Child through testimony and doc-
[16] Similarly, the exclusion of evidence pertaining umentation). However, not one incident
to Anna's foster sister's abuse was erroneous. The of a suspected abuse was previously re-
portions of Stella Rose Gambino's deposition per- ported to Central Registry, nor has any
tinent to this incident should have been admitted in- maltreatment of a child been cited as a
to evidence, and Dr. deAlvarado should have been reason for removal of a child. Other situ-
allowed to testify regarding that case as well as ations have been found in the routine
course of investigation by the Protective/

Page 18
649 F.2d 134
(Cite as: 649 F.2d 134)
Inspection Units, whereby another child child abuse or maltreatment who know-
may be placed in a home being investig- ingly and willfully fails to do so shall be
ated, having been abused in a previous civilly liable for the damage proximately
home. caused by such failure.
Since such Independent Reviews cover Copies of the Child Protective Procedure
only a very small percentage of the chil- will be sent to you shortly.
dren in foster care, the larger issue is
how many foster children in care may be It is important that Social Services Law,
abused and/or maltreated (as defined in Article 6, Title 6, be reviewed with your
the Family Court Act and Social Ser- staff pointing up the necessity of report-
vices Law, Article 6, Title VI) and how ing suspected cases of abuse and/or mal-
many such incidents go unreported. treatment. It is better, by far, in the best
interests of the children we are mandated
According to Article 6, Title VI, cover- to protect, to err on the side of reporting
ing Child Protective Services of the So- cases which may be unfounded, than not
cial Service Law, all cases of suspected to report and thereby endanger our chil-
child abuse or maltreatment must be re- dren. It is imperative that diligent report-
ported. Section 413 of the Social Service ing be made to the SSC Central Registry,
Law designates the persons and officials 431-4680 as well as our Protective/In-
who are mandated sources and indicates spective Units, the latter having the re-
that whenever such person is required to sponsibility of investigating all allega-
report in his capacity as a member of the tions of this nature. In reporting all sus-
staff of a medical or other public or pected instances of abuse and maltreat-
private institution, school, facility or ment, you are not only protecting the
agency, he shall immediately notify the health and welfare of the children in
person in charge of his designated care, but the agency as well.
agency who shall then become respons-
ible to report or cause reports to be With your full cooperation I am sure our
made. In addition, any other person who children will be receiving better services
has reasonable cause to suspect that a which will enhance their care.
child is an abused or maltreated child
The District Court would have been cor-
may make such a report.
rect in excising only the first paragraph,
The penalties for failure to report abuse that is, the portion which cited unrepor-
or maltreatment are specifically spelled ted abuses in unnamed agencies. Given
out: that there is no reason to believe that the
Catholic Home Bureau was one of the
(a) Any person, official or institution agencies referred to, the possibly preju-
mandated to report child abuse or mal- dicial effect of that portion of the
treatment, who willfully fails to do so, memorandum outweighs any probative
shall be guilty of a Class A Misdemean- value it might have. Rule 403, Fed.R. of
or. Ev. However, the remainder of the
memorandum, and particularly the last
(b) Any person, official or institution full paragraph which stressed the import-
mandated to report a case of suspected ance of reporting all uncertain cases,

Page 19
649 F.2d 134
(Cite as: 649 F.2d 134)
should have been admitted into evid- witness, the less likely it is that an appear-
ence. ance of neutrality can be maintained.
[18] While questioning the plaintiff at trial,[FN14] Although appellate courts are often
Judge Pollack elicited over plaintiff's attorney's ob- loathe to reverse based simply on the
jections the fact that Anna had recently borne an quantity of questioning by the trial court,
out-of-wedlock child, a fact which was reiterated in see United States v. Switzer, 252 F.2d
the court's charge to the jury. Defendant defends 139 (2d Cir.), cert. denied, 357 U.S. 922,
the admission of such evidence on the theory that it 78 S.Ct. 1363, 2 L.Ed.2d 1366 (1958),
was relevant to the issue of damages.*149 Pre- such questioning definitely “should not
sumably their theory is that Anna's having borne a become the rule,” United States v.
child shows that her capacity to perform and enjoy D'Anna, 450 F.2d 1201, 1206 (2d Cir.
sex was not greatly harmed by her abuse in the 1971). The fact that this case must be re-
foster home. We think such a conception of relev- versed on other grounds obviates the
ancy to be highly attenuated and of dubious valid- need for us to decide whether the mag-
ity. At the very least, plaintiff was entitled to have nitude and pointedness of the court's
the cautionary instruction to the jury that her having questioning require reversal. We merely
had an out-of-wedlock child, or for that matter, any note in passing that such questioning
sort of sexual conduct, should not be taken as bear- should be used sparingly, and perhaps
ing on credibility.[FN15] See Lucero v. Donovan, only when the attorneys have demon-
354 F.2d 16, 22 (9th Cir. 1965); United States v. strated an inability to elicit important
Rabinowitz, 578 F.2d 910, 912 (2d Cir. 1978); testimony.
United States v. Nuccio, 373 F.2d 168, 171 (2d
Cir.), cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 FN15. Plaintiff was likewise entitled to her
L.Ed.2d 623 (1967); United States v. Provoo, 215 requested instruction that as a child under
F.2d 531, 537 (2d Cir. 1954). the age of 17 she was legally incapable of
consenting to sexual relations with her
FN14. During the direct testimony of foster father. New York Penal Code ss
plaintiff the trial judge three times inter- 130.25, 130.30, 130.35 (McKinney). The
rupted and conducted what amounted to a jury's awareness of evidence that Anna did
lengthy cross-examination of the witness, not publicly protest the foster father's ac-
totaling 36 pages of trial transcript. Al- tions, together with evidence of her out-
though the questioning was generally per- of-wedlock child may well have raised the
tinent and a brilliant example of the art of issue of consent in the jury's mind, thus ne-
cross-examination, its very effectiveness cessitating an instruction to counteract im-
could only magnify the dangers it posed. proper inferences.
When a trial is being conducted in front of
a jury, it is of the utmost importance that Defendant argues that any errors committed by the
the court maintain an appearance of strict trial court would have been harmless because
neutrality, United States v. Sheldon, 544 plaintiff's case was so weak that it should never
F.2d 213, 219 (5th Cir. 1976), regardless have gone to the jury. We disagree. This is a com-
of whether the trial is civil or criminal. plicated and difficult case. Whether the Catholic
Anderson v. Great Lakes Dredge and Dock Home Bureau's omissions were the product of de-
Co., 509 F.2d 1119, 1131 (2d Cir. 1974). liberate indifference and proximately caused any
The more extensively a judge questions a portion of Anna's abuse were questions of fact to be
resolved by the jury.

Page 20
649 F.2d 134
(Cite as: 649 F.2d 134)
Reversed and remanded for a new trial. testified, was that Catholic Home Bureau was
lied to by Anna and her sister, was told by them
MESKILL, Circuit Judge (dissenting): that everything was all right. They never com-
Appellant's primary contention on appeal is that er- plained or revealed to anyone any impropriety of
rors in Judge Pollack's charge to the jury require re- the foster father, not to the case workers, not to
versal. Because I am convinced that the court's the foster mother, not to the school teachers, not
charge was proper when viewed as a whole and that to the priests, not to her sister who resided with
the remainder of plaintiff's arguments involve al- her, and not to any girl or boy friend or anyone
leged errors by the district court that would not else.
warrant reversal, I dissent.
The thing that stands out starkly in this record
The trial court allowed the case to go to the jury is that the plaintiff and her *150 sister are admit-
only under a reserved decision to grant Catholic ted liars on whose word no one could rely and
Home Bureau's (the “Bureau”) motion to dismiss. who at all events put the Catholic Home Bureau
Judge Pollack told counsel that any jury “verdict in a frame of mind other than of apprehending
for the plaintiff could be reached only through pas- impropriety.
sion or prejudice and would have to be set aside as
unreasonable” because “(t)his case falls hopelessly In this Court's view, no reasonable person
short of constituting deliberate indifference to the could find, in the light of the evidence adduced at
supervision, living conditions, welfare, treatment, trial, that a federal cause under the Civil Rights
or conduct of the foster parents.” The court ex- Act was made out against the Catholic Home
plained: Bureau.
Negligent supervision is not something on A. 403-05.

which a suit can be brought in the federal courts
under the Civil Rights Acts Despite the conclusion of the trial judge that
plaintiff's case against the Bureau fell “hopelessly
Negligent supervision is not equated with de- short of constituting deliberate indifference,” A.
liberate neglect, deliberately improper or deliber- 404, the majority finds this to be “a complicated
ately indifferent conduct, which calls for know- and difficult case.” Maj. op. at 149. With the ad-
ledge and awareness of what is going on. There is vantage of hindsight not enjoyed by the defendant,
no evidence in this record whatever of knowledge the majority finds it difficult to understand the Bur-
by Catholic Home Bureau of a pattern of consti- eau's failure to discover Senerchia's alleged abuse
tutionally offens(ive) acts and failure to take re- of Anna. Specifically, the majority points to a re-
medial steps. Indeed, the contrary is the evidence port prepared by one of the defendant's staff psychi-
in this record. atrists, Dr. deAlvarado, in which she stated “there
is reason to be concerned as to the foster father's re-
The first reports and I am not speaking of ab- lationship with this girl.” A. 269. Dr. deAlvarado's
struse, unsubstantiated speculations of abuse concern primarily was triggered by Anna's response
reached the agency on August 23, 1977, and that to the doctor's inquiry as to whether she was sexu-
very day the agency galvanized into action, in- ally involved with her foster father. Rather than
vestigated, barred the father from the foster home giving the expected response of “Gee, are you nuts?
and within days closed the home and removed the Are you crazy?” A. 119, Anna responded only by
children elsewhere. tearfully turning away in silence. A. 268.
The courtroom proof, from every witness who There was other evidence possessed by the Bureau,

Page 21
649 F.2d 134
(Cite as: 649 F.2d 134)
however, that strongly contradicted any suspicions the Bureau's failure to detect Mr. Senerchia's al-
that could have been raised by reason of the report leged abuse of Anna could be attributed to any
prepared by Dr. deAlvarado. Indeed, there were “deliberate indifference” or “gross negligence” of
clear indications that Anna's relationship with her the Bureau.
foster parents was supportive and that the mainten-
ance of the relationship was necessary to her emo- FN1. Dr. Davis' report states, “Obviously
tional well-being. For example, in an interview con- someone became suspicious of the ad-
ducted two months prior to the one by Dr. deAl- equacy of the home and the adoptive fath-
varado, a different staff psychiatrist, Dr. Lewis, had er's behavior.” A. 396. (Emphasis sup-
concluded that “the foster home should be main- plied).
tained, if possible, because of the warm, secure en-
The majority nevertheless argues that subtle ambi-
vironment it offers the girls.” A. 259. Dr. Lewis
guities in the court's instructions may have misled
had further stated that Anna appeared “to be gener-
the jury. The issue, *151 however, is not whether
ally quite docile and secure in the protectiveness
the jury charge was perfect, see Franks v. United
and caring of her foster parents.” A. 261. Signific-
States Lines Co., 324 F.2d 126, 127 (2d Cir. 1963),
antly, Dr. Lewis' findings were based upon the res-
but rather whether the charge, taken as a whole, is
ults of separate interviews with Anna and Sener-
likely to mislead the jury as to the applicable prin-
chia, whereas Dr. deAlvarado had interviewed only
ciples of law. Norfleet v. Isthmian Lines, Inc.,
Anna. Moreover, several months after the interview
355 F.2d 359, 362-63 (2d Cir. 1966). My reading of
by Dr. deAlvarado, Anna was examined by a non-
the charge convinces me that, taken as a whole, it
staff psychiatrist, Dr. Davis. This psychiatrist “saw
adequately explained the applicable principles of
Anna for a lengthy psychiatric evaluation” and sub-
law, and does not constitute grounds for reversal.
sequently interviewed the Senerchias. A. 399. Dr.
Davis concluded that “anything which can be done The majority concedes that the charge adequately
to facilitate (the Senerchias' adoption of Anna) explained that inaction can be a basis for liability
would be helpful.” A. 397. Importantly, Dr. Davis' under s 1983, see Estelle v. Gamble, 429 U.S. 97,
report indicated that he was aware of the suspicions 103-06, 97 S.Ct. 285, 290, 292, 50 L.Ed.2d 251
that had been generated concerning Senerchia's al- (1976). Furthermore, the majority acknowledges
leged salacious activity with Anna.[FN1] Addition- that the court properly rejected plaintiff's requested
ally, an experienced caseworker was assigned to instruction defining “deliberate indifference” and
Anna after Dr. deAlvarado's interview and made concedes that plaintiff's requested charge respecting
thirteen visits to the Senerchias within one year. the requisite knowledge of the Bureau was
The caseworker concluded, in a report prepared fol- “somewhat confusing.” Nevertheless, the majority
lowing those visits, that “(a)fter extensive discus- labels as error the failure of the trial judge to inter-
sions with both parents in regard to Anna's sexual ject into his charge an abstruse instruction describ-
behavior, I could find no evidence of any sexual in- ing the relationship between gross negligence and
volvement between Anna and Mr. S(enerchia).” A. deliberate indifference. As the majority's discussion
316. Finally, in 1977, when the Senerchias were of “intent,” “knowledge,” and “deliberate indiffer-
evaluated psychiatrically prior to obtaining the final ence” illustrates, however, these concepts are elu-
approval of their anticipated adoption of Anna, the sive and difficult to apply in the context of s 1983
psychiatrist reported that the Senerchias “were both actions. I doubt that the majority's discussion
in good contact with reality, polite, well controlled, provides a clearer, more accurate application of
friendly, conversational, and did not show evidence these concepts than was contained in Judge Pol-
of emotional disturbance, or pathological sympto- lack's explanation to the jury that
matology.” A. 544. It is difficult to imagine how

Page 22
649 F.2d 134
(Cite as: 649 F.2d 134)
(Plaintiff must) prove that the defendant know- able to the extent that the failure to report resulted
ingly and intentionally harmed the plaintiff or de- from deliberate indifference to Anna's welfare. Fur-
liberately, with knowledge that she was being thermore, the majority concedes that plaintiff's re-
mistreated in the foster home, intentionally per- quested charge on this matter was erroneous and
mitted this to occur or were (sic) intentionally in- that plaintiff never articulated the theoretical nu-
different to whether it was occurring ances conjured up by the majority. Can this be plain
error?
In short, the plaintiff in this type of case, in or-
der to recover, must establish with credible evid- With respect to the court's discovery rulings, al-
ence, believable evidence, that the defendant on though the majority could not find any reversible
trial knowingly and intentionally closed its eyes error, it suggested that broader discovery may be
to and permitted or knowingly and intentionally appropriate on remand. In connection with the chal-
caused the mistreatment which the plaintiff says lenged evidentiary rulings, the majority finds that
violated her rights. the district court erred in its balance of the probat-
ive value and prejudicial effect of the disputed
A. 217-18. This charge, which was adequate and evidence. These evidentiary rulings,*152 however,
clear, should have been endorsed by this Court. In- lay within the broad discretion of the trial judge,
stead, it has been criticized for not having ex- see United States v. Williams, 577 F.2d 188,
plained to the jury the close relationship between 191-93 (2d Cir.), cert. denied, 439 U.S. 868, 99
the concepts of gross negligence and deliberate in- S.Ct. 196, 58 L.Ed.2d 179 (1978). First, the evid-
difference. However, there was no evidence of ence respecting Anna's foster sister was not relev-
gross negligence for the jury to consider. But, even ant to the Bureau's knowledge of Anna's problems
more important, there is no indication that plaintiff where deliberate indifference is the standard. The
ever requested any instruction respecting the rela- admission of such evidence could only have con-
tionship between “gross negligence” and fused the jury. Moreover, the reference in Parry's
“deliberate indifference.” letter to the failure of unnamed agencies to report
child abuse might well have led the jury to infer
The court's charge regarding the Bureau's duty to
that the letter charged the Bureau with failing to re-
report stated correctly that the Bureau could not be
port incidents of child abuse when there was no
held liable under s 1983 “because it did or didn't re-
such evidence in the case. Finally, the majority
port what was going on in school or elsewhere to
faults the trial judge for eliciting the fact that Anna
the Department of Social Services.” A. 217. The
had recently borne a child out of wedlock. But
majority argues that the district court's charge im-
Anna herself placed her sexual conduct in issue by
plies that a failure to report is irrelevant to estab-
claiming that as a result of sexual abuse in her
lishing liability under s 1983; however, that implic-
foster home she had problems in her married sex
ation only arises if the challenged portion of the
life. I do not believe that Judge Pollack abused the
charge is taken out of context. The immediately
discretion afforded him in making these rulings.
preceding sentence of the court's charge instructed
the jury that intentional indifference by the Bureau It is obvious that the majority does not agree with
concerning whether Anna was being mistreated was the result reached in this case. This is no excuse,
actionable. Since the court had admitted into evid- however, for remanding for a new day in court
ence the statutory duty to report child abuse, A. when the plaintiff has already had a fair trial.
154-55, Appellant's br. at 37, the most reasonable
interpretation of the charge, taken as a whole, was I would affirm.
that a failure to report suspected child abuse was
not itself actionable under s 1983, but was action- C.A.N.Y., 1981.

Page 23
649 F.2d 134
(Cite as: 649 F.2d 134)
Doe v. New York City Dept. of Social Services

649 F.2d 134
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Westlaw Delivery Summary Report for PATRON ACCESS,-

Date/Time of Request: Tuesday, June 22, 2010 11:50 Eastern

Rooker Feldman DOCTRINE. Citing Inkel v. Feldman

United States Court of Appeals, [1] Civil Rights 78 1039

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[8] Negligence 272 273 ited in General

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170AXV(G) Instructions equately and to report her situation to the New

Before OAKES and MESKILL, Circuit Judges, and Background Facts

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Defendant Catholic Home Bureau per- Evidentiary and Discovery Rulings

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Negligent supervision is not something on A. 403-05.

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Doe v. New York City Dept. of Social Services

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