Qualified immunity attaches in child neglect case

Over the last few months, the Second Circuit has reminded us how difficult it is to sue state child welfare caseworkers who mistakenly remove children from their parents. Cases in point are Cornejo v. Bell, 592 F.3d 121 (2d Cir. Jan. 4, 2010) and Graham v. Mattingly, 2009 U.S. App. LEXIS 22908 (2d Cir. Oct. 19, 2009).

This time around it's V.S. v. Muhammad, decided on February 17. Caseworkers took V.S.'s child away after infant T.S. had a swollen leg and a fractured femur. When caseworker Muhammad and Dr. Esernio-Jenssen investigated, V.S. and her mother could not explain away these injuries. The mother eventually admitted that she dropped the baby, but even that did not explain all the injuries. The doctor concluded that T.S. was the victim of "shaken baby syndrome," and Family Court took away the baby after a hearing in which Muhammad did not advise the court about the mother's negligence in dropping the baby or other exculpatory information. Plaintiff's expert opined that the injuries were more consistent with childbirth injuries, and in the end, V.S. got her baby back when the agency withdrew the petition.

The Court of Appeals (Miner, Cabranes and Rakoff, D.J.) finds that defendants have qualified immunity from suit. Qualified immunity is a creature of the federal civil rights laws; it gives public officials benefit of the doubt in close cases requiring discretionary judgment. Not all civil rights cases warrant qualified immunity, but Judge Rakoff says this one does in light of the information known to the defendants when they made their initial decisions about child abuse. That initial decision was not unreasonable, particularly since some of the injuries were not sufficiently explained.

V.S. had some interesting arguments in her favor, but the Court of Appeals sees it differently. While Muhammad did not tell the Family Court certain facts which may have cleared the plaintiff, the Court of Appeals notes that plaintiff's attorneys were in Family Court as well and could have easily apprised the judge in that proceeding the same information. While the doctor in this case allegedly had "repeatedly misdiagnosed child injuries as evidence of child abuse," the Court of Appeals doesn't find this a sufficient reason to reject immunity:

She based her diagnosis of T.S. on determinations made by another doctor, Dr. Sylvia Kodsi, of retinal hemorrhages, a common indicator of shaken baby syndrome, and her opinion was shared by another well qualified physician, Dr. Shakin. Even if the ACS personnel here involved had been aware of Dr. Esernio-Jenssen’s alleged “reputation” for overdiagnosing child abuse, it still would not have been unreasonable for them to rely on Dr. Esernio-Jenssen’s diagnosis of T.S. in these circumstances.