Law School Case Brief
Nicholson v. Scoppetta - 344 F.3d 154 (2d Cir. 2003)
As a general rule before parents may be deprived of the care, custody, or management of their children without their consent, due process -- ordinarily a court proceeding resulting in an order permitting removal -- must be accorded to them. However, in emergency circumstances, a child may be taken into custody by a responsible state official without court authorization or parental consent. If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent. The government must offer "objectively reasonable" evidence that harm is imminent. The peril of sexual abuse, or a risk that children will be left bereft of care and supervision can suffice to create an emergency.
The State of New York has the power to monitor and protect against abuse or neglectful treatment of the State's children. In New York City, a city agency known as the Administration for Children's Services (ACS) bears primary responsibility for child protection. ACS carries out its mission in cooperation with a number of public and private entities, which provide it with data and other support, and in partnership with the Family Court itself, which ultimately must give legal sanction to any of ACS's enforcement decisions. ACS is also supervised by a state agency, the Office of Children and Family Services (OCFS). The named plaintiffs Sharwline Nicholson, Sharlene Tillett, and Ekaete Udoh are mothers whose children were removed by ACS. The remaining named plaintiffs are children who have been removed by ACS, either temporarily or permanently, from the custody of their parents. In the case of each plaintiff, at least one of the grounds for removal was that the custodial mother had been assaulted by another individual, and had failed to prevent the child or children from being "exposed" to that incident of violence. The federal district court found that the City was at least inattentive to the custom or practice of its officers in "removing" children from the custody of a parent who had been battered by a spouse or paramour, based on the theory that the parent's failure to protect the child from witnessing the abuse was itself a form of child neglect. This practice, the District Court concluded, contravened protected substantive due process and procedural due process liberty interests of parents and children in staying together as a family. The District Court also held that the removals were unreasonable seizures, contrary to the safeguards of the Fourth Amendment. The City of New York and its chief child-welfare administrator challenged the determination of the United States District Court for the Eastern District of New York, which granted preliminary injunctive relief, that, in part, prohibited defendants from removing children from the custody of their parent or guardian on the basis that the parent or guardian allowed the child to witness domestic violence.
Was the federal district court correct in its pronouncement that the City of New York violated the Constitution with regard to the manner in which the city has chosen to carry out the task of child protection?
The appellate court agreed that in some circumstances the removals could raise serious questions of federal constitutional law. However, the court also concluded that uncertain issues of state law preceded its own constitutional inquiry. Given the court's strong preference for avoiding unnecessary constitutional adjudication, as well as the importance of child safety to the state, the appellate court chose to certify the state law questions to the state court of appeals.
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