Fed court rules lawyers acting as prosecutors in abuse cases have full immunity but not caseworkers

Examiner Bio Fed court rules lawyers acting as prosecutors in abuse cases have full immunity but not caseworkers
January 7, 10:10 AMAlbany CPS and Family Court ExaminerDaniel Weaver

Copyright Wikimedia CommonsThe United States Court of Appeals for the Second District ruled on January 4, 2010 in Cornejo v. Bell that lawyers operating in the capacity of prosecutors for the New York City Administration of Children's Services have complete immunity from liability while performing their duties in charging parents with abuse and neglect.* But the court disagreed with a New York State court's ruling that other employees such as Child Protective Services investigators have complete immunity from liability. Instead, the federal court said they only have limited immunity.

The case arose from the death of Sally Cornejo's son. Because this case is quite important, I will quote the facts of the case from the federal court's description.

"The pertinent facts, largely undisputed and, where disputed,
3 taken most favorably to the plaintiff, are as follows:
4 On October 30, 2002, plaintiff Cornejo returned from work to
5 find her fiancé, Rothman Salas, holding their five-month-old son
6 Kenny, who was not breathing. Kenny was subsequently brought to
7 Schneider Children’s Hospital (“Hospital”) at 11:30 PM. On the
8 afternoon of October 31, 2002, a nonphysician Hospital employee
9 reported (via telephone call) to the New York State Central
10 Registry of Child Abuse and Maltreatment (the “SCR”) that Kenny
11 had suffered a broken rib, diffuse cerebral edema, and a heart
12 attack as a result of being violently shaken by his father. The
13 Oral Report Transmittal (“ORT”) documenting the call stated that
14 Cornejo was not present during the shaking incident. A second
15 ORT made at approximately 5:30 PM stated that the rib fracture
16 was several weeks old but that the parents had “failed to provide
17 a plausible explanation” for how Kenny’s rib was fractured.
18 Upon receiving the two ORTs from SCR, ACS assigned
19 caseworker Cerrito to investigate. Cerrito spoke by telephone
20 with Dr. Debra Esernio-Jenssen, a pediatric specialist in charge
21 of the Hospital’s Child Protection Consulting Team, who reported
22 that Kenny’s immediate brain and heart injuries were most likely
23 caused by Shaken Baby Syndrome. She also expressed her belief
24 that Cornejo had “no part” in the immediate injuries, which"

1 “would happen immediately after violent shaking.” Dr. Esernio-
2 Jenssen further opined, however, that the broken rib could have
3 been the result of a prior shaking incident. Cerrito reported
4 this back to Hogg, who concluded that not only Kenny but also
5 Kevin, the couple’s other, eighteen-month-old son, would have to
6 be removed from the home pending further proceedings.
7 Cornejo was then informed that both her children would be
8 removed from her custody until the ACS investigation was
9 completed. Cerrito arranged for Kevin to be brought to the
10 Hospital, where he was examined and then placed in temporary
11 kinship foster care on an ex parte emergency basis. The medical
12 examination of Kevin showed him to be healthy, with no signs of
13 abuse. Kenny remained at the Hospital, where he died on November
14 7.
15 Meanwhile, on November 1, ACS instructed its attorneys to
16 file petitions in Family Court accusing both parents of child
17 abuse of both children. Kaplan filed the petitions, which were
18 signed by Cerrito, that day. The petitions notably failed to
19 differentiate between the two parents, Cornejo and Salas, stating
20 that both parents had either “inflict[ed] or allow[ed] to be
21 inflicted . . . physical injury” or “create[d] or allow[ed] to be
22 created a substantial risk of physical injury” to the children.
23 The petitions included the Hospital diagnosis of Shaken Baby
24 Syndrome as the cause of Kenny’s heart and brain injuries; as to"

"the fractured rib, the petition alleged that the parents “failed
2 to provide an explanation consistent with a non-abusive or non-
3 intentional trauma.” The Family Court remanded the children to
4 ACS, and, as noted, Kenny died on November 7.
5 Despite an intervening attempt by Cornejo to regain custody
6 of Kevin, this was where matters stood until, on November 14, a
7 city medical examiner informed ACS attorney Schwartz of her
8 preliminary findings: that she “could not say” that Kenny was a
9 victim of Shaken Baby Syndrome and that the “fractured rib” was
10 actually a congenital rib malformation. As a result, the very
11 next day, ACS itself sought, by Order To Show Cause, to parole
12 Kevin to his mother. Nevertheless, the Family Court judge, after
13 hearing testimony from Dr. Esernio-Jenssen in which she
14 maintained her conclusion that Kenny had been shaken, declined to
15 return Kevin to his mother’s care. The judge also denied
16 subsequent applications for parole or withdrawal of the petition
17 against Cornejo, citing ongoing disparities in the medical
18 evidence as to the cause of Kenny’s death.
19 In January 2003, the medical examiner issued a final autopsy
20 report that concluded that the actual cause of Kenny’s death was
21 a “rare and natural heart defect” and that reaffirmed the medical
22 examiner’s previous finding that there was no rib fracture but"

"only a congenital abnormality. The Hospital staff, however,
2 maintained its view that Kenny had been shaken.1
3 On February 4, ACS sought withdrawal of the petition against
4 Cornejo, but the Family Court judge denied the request, making
5 clear that she would not allow withdrawal of that petition unless
6 ACS was also willing to withdraw the petition against Salas.
7 Nevertheless, the judge did this time allow Kevin to be paroled
8 to Cornejo’s custody. On May 20, Cornejo moved for summary
9 judgment and dismissal of the petition against her. At a court
10 appearance on June 10, Schwartz stated that “ACS has no basis to
11 dispute the [medical examiner’s] findings,” and the Family Court
12 judge allowed both petitions to be withdrawn.
13 Thereafter, on January 28, 2004, Cornejo commenced, on
14 behalf of herself and her son Kevin, the first of the two civil
15 rights proceedings now consolidated in this case, which, as now
16 consolidated, allege due process and search and seizure
17 violations under 42 U.S.C. § 1983, as well as state and federal
18 claims for malicious prosecution (the latter again under § 1983)
19 and a state law claim for breach of the duty of reasonable care."**

What we essentially have here is a mother and father who were falsely accused of abuse, and a lower court that would not initially allow the Administration for Children's Services to withdraw their petition against the parents, even when the evidence showed there was no abuse. The Family Court judge eventually allowed the petitions to be withdrawn. The mother then sued, but a higher state court ruled against her.

She then proceded to sue in federal court, and the above ruling is the result of that suit. While the ruling that employees, other than lawyers acting in the role of prosecutor, have only limited immunity is a victory for all parents, unfortunately, the Federal Court of Appeals ruled that the investigators' actions in this case were proper. Therefore the court ruled that even though these employees only have qualified immunity, that immunity was enough to absolve them of any liability in this case, leaving the parents nothing in return for the ordeal they went through, which not only included false allegations of abuse but the death of a child.


*In upstate counties these duties are generally performed by the legal staff of the county's social services department.

**In a footnote the court also said, "Kenny’s heart was subsequently sent to two pediatric cardiologists for further evaluation. Neither specialist ultimately found a definitive cause for the heart attack, but
they concluded that it was more likely that Kenny’s death resulted from a congenital defect than from shaking."

For more info: Read the entire ruling.

http://www.examiner.com/x-14537-Albany-CPS-and-Family-Court-Examiner~y2010m1d7-Fed-court-rules-lawyers-acting-as-prosecutors-in-abuse-cases-have-full-immunity-but-not-caseworkers?cid=exrss-Albany-CPS-and-Family-Court-Examiner