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Second Circuit: Qualified Immunity Denied as District Court record not sufficient to justify Child P

Nassau County Cannot Arrest and Order Psychological Evaluation without a finding of mental illness and dangerousness

The show of authority by Child Protective Services is daunting. Power corrupts and absolute power corrupts absolutely. Child Protective Services can take your child, call for arrests, psychological evaluations and make life long determinations against someone's ability to care for children. Often times there are complaints and phone calls but few had the patience and tenacity to do what the plaintiff here did: sue Nassau County Child Protective Services and survive the Qualified Immunity assertion by the defendants. Johnson alleged, inter alia, that her Fourth Amendment Rights were violated:

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons…against unreasonable searches and seizures." U.S. Const. amend. IV. This protection adheres whether the seizure is for purposes of law enforcement or due to an individual's mental illness. "[A]ssuming that the term 'mental illness' can be given a reasonably precise content and that the 'mentally ill' can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom." Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir. 1995) (quoting O'Connor v. Donaldson, 422 U.S. 563, 575 (1975)) (alterations omitted). To handcuff and detain, even briefly, a person for mental-health reasons, an officer must have "probable cause to believe that the person presented a risk of harm to [her]self or others." Kerman v. City of New York, 261 F.3d 229, 237 (2d Cir. 2001); see also Green v. City of N.Y., 465 F.3d 65, 83-84 (2d Cir. 2006) (likewise requiring a showing of dangerousness for seizure and transportation to a hospital for treatment).

Here, after receiving a report, Nassau County Child Protective Services opened an investigation against the Plaintiff. The caseworker contacted police and met the police at the Plaintiff (Johnson's) home where she asserted that the mother (Johnson) was irrational and should be sent for a psychological evaluation. There were no findings nor observations that Johnson's behavior was erratic or that she should be hospitalized. However, "[o]n August 20, 2008, Johnson was arrested and eventually taken to Nassau University Medical Center (NUMC) against her will." Pp. 7. The word of the Child Protective Services worker was enough to seize, arrest, and detain Johnson.

Johnson was eventually subjected to involuntary psychological evaluation and was determined to be a danger to herself and to others. The Second Circuit's analysis, however, is not affected by the fact that Johnson was found to be dangerous subsequent to her seizure. Upon being admitted involuntarily, Johnson was diagnosed with a delusional disorder and paranoid schizophrenia. Johnson, 2014 WL 2744624, at *3. Accordingly, based on her suicide attempt and her paranoia, guardedness, and suspiciousness, she was deemed a danger to herself and to others. Id. Shortly thereafter, in October of 2008, CPS filed a neglect petition against Johnson pursuant to the New York State Family Court Act. Two days later, Johnson underwent a second involuntary hospitalization and refused antipsychotic medications, leading the state court to order forced medication. She was released after a brief period, once she was no longer believed to be a danger to herself or to others. Johnson, 2014 WL 2744624, at *4. [Pp. 19-20] "Johnson's parental rights were eventually severed. In 2009, the New York Family Court granted CPS's neglect petition and adjudged DJM to be a 'neglected child' as defined under New York family law." Id. at *4. In 2010, the family court placed DJM under the supervision of the Nassau County Department of Social Service, granted custody to Myers, and issued an Order of Protection instructing Johnson to stay away from DJM.8 Id. at *4.

The facts and outcome seem to justify the actions of the Nassau County Child Protective Services. After all, Johnson's parental rights were eventually severed, right? What about the initial encounter. The Second Circuit finds that there was not enough facts in the record to establish that the Child Protective Services worker was justified in ordering Johnson's arrest and subsequent psychological evaluation:

The Court finds a more exacting standard to take one away for a psychological evaluation:

The district court's use of "homicidal or other violent behavior" refers to the language of N.Y. Mental Hyg. Law §9.41, which governs emergency admissions of one "who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others." Id. The New York statute further defines "likely to result in serious harm" such that the legal standard for detention of the parent, by reason of risk of harm to the child, depends on "substantial risk of physical harm…as manifested by homicidal or other violent behavior by which [the child is] placed in reasonable fear of serious physical harm." N.Y. Mental Hyg. Law §9.01 (emphasis added); see also Kerman v. City of New York, 374 F.3d 93, 100 (2d Cir. 2004) ("We interpreted [New York law] as imposing the same objective reasonableness standard that is imposed by the Fourth Amendment." (internal quotation marks omitted)).

In this respect, it is significant that the standard for involuntary detention of the parent is different from the standard for removal of the child from the parent. Thus, a police officer may take a child into emergency, protective custody, even in the absence of a court order, if the officer "has reasonable cause to believe that the child is in such circumstance or condition that his or her continuing in said place of residence or in the care and custody of the parent…presents an imminent danger to the childʹs life or health." N.Y. Fam. Ct. Act §1024. And, the risk of harm to the child need not result from violence. But to seize a "mentally ill" parent, danger of physical violence is needed.

Although Johnson could very well have been a danger to children at that moment she encountered the Nassau County Child Protective Services worker, as I often try to explain to certain adversaries, the constitution is not a could be standard. Our constitutional rights cannot be disregarded because of fear or an assumption of potential threat. "however prescient the officer's instincts may have been, we cannot grant immunity for decisions merely because ex post they seem to have been good ones, any more than we could hold officers liable for decisions that seemed reasonable when made but subsequently turned out to be wrong. Of course, courts must be sympathetic to the complicated institutional environments in which police officers are called on to execute difficult duties.

The Court holds that "[n]evertheless, we must judge their actions by the facts as observed at the time they acted. As a result, we require, at this juncture in this case, a more complete record to determine whether in the end a grant of qualified immunity for Patterson is appropriate." Pp. 20

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