NYC Asks U.S. Supreme Court to Decide ACS Mistaken Removal of Wrong Set of Children
By Mary Alice Miller
The City of NY has asked the U.S. Supreme Court to deny a parent the ability to sue a case worker for monetary damages who falsified information in order to wrongfully remove his children from his home.
Sonny Southerland’s teen daughter Ciara drank non-toxic paint at school one day. Though the school claimed it was a suicide attempt, none of the school authorities called EMS to have Ciara evaluated in an emergency room or a mental health facility. Nevertheless, the Administration of Children’s Services was contacted. Southerland informed the school and ACS that Ciara was not living in his home and he had obtained several PINS (persons in need of supervision) designations on her.
Caseworker Timothy ‘Woo came to Southerland’s home, and after several attempts, met 5 of Southerland’s youngest children as he was taking them to school. Woo obtained the names of all of Southerland’s children. Woo went to Family Court to procure a warrant, using the names of children associated with Ciara’s mother, who had an open ACS case and a different set of children. Woo knew that Ciara’s mother’s children were different because he had obtained the names of Southerland’s children from Southerland himself.
Woo was able to gain access to Southerland’s home and made an assessment. Woo looked in the refrigerator and found among other items, birthday cake and beer, remnants of a birthday party for one of Southerland’s children the day before. (Southerland has video of the birthday party which shows that the children were healthy, happy, and well-fed.) Woo did not look in the freezer or the kitchen cabinets, yet made an assessment that the children had no food and were hungry.
Woo told the court that one child had stepped on a nail and that Southerland was not making arrangements to have the child get a tetanus shot. Woo deemed it medical neglect. But, there was no nail. Southerland had taken the children to Cypress Hill Park and the child had stepped on a small tree branch. She had a slight limp and her foot was a little sore, but the skin was not broken.
Woo also presented information to the court that the children were sleeping on the floor, but neglected to mention that the children had bunk beds and preferred to sleep on camping equipment, i.e., sleeping bags. Woo made a point to complain that there was electronic equipment in one of the rooms.
Because of Woo’s subjective assessment, which should not have taken place because the catalyst — Ciara — did not live in the home, the children were removed.
At a certain point, Family Court realized Woo’s representations to the court were not factual, but that did not stop what Southerland says is a fabrication of abuse allegations against him which he says was used to justify keeping the children.
In NYC’s petition to the U.S. Supreme Court for a writ of certiorari (cert), the city states “In 1998, after a trial in New York State Family Court, Sonny Southerland was found to have abused his seven children so severely – sexually and corporally – as to warrant denying him custody for seven years.” What the city doesn’t tell the Court is that all of the children were attending school daily. Southerland contends that if his children were as “severely” abused as the city contends, NYC schools are staffed by mandated reporters who are required by law to report suspected child abuse. According to the record, no school-based mandated reporter alerted child protective authorities of any allegation of abuse by Southerland against the children living in his home.
Brian King, Southerland’s attorney stated he interviewed all of the children. “You know, all of his children are still with him. They came back to him, after the foster care system and everything. I interviewed all of those children. Now, they are adults of course. Each of them, to a person, said that their dad never abused them and he is a good dad,” said King. “I think that is a testament to how good a dad he is as anything. They are adults now saying, ‘No. He never abused us.’ He is a good dad.”
Southerland said the charges of abuse were manufactured after his children were taken from him. According to Southerland, during the Family Court case process, the court demanded he undergo a psychiatric evaluation with a court-appointed service provider. Southerland refused the court appointed provider and decided to obtain an independent evaluation from a service provider of his choosing, which Southerland said made the process even more belligerent. Southerland said he believes any courtappointed psychiatric evaluation service provider would be tempted to produce a report favorable to the court in order to continue to obtain court-appointed referrals. He also believes that giving parents no choice but to undergo a psychiatric evaluation with only court-appointed service providers is a method to pathologize the parent.
The City is asking the Supreme Court to decide several questions. 1) Assuming that a plaintiff has a constitutional claim under either the 4th or 14th amendment with respect to a child’s removal, should the qualified immunity question, as to the caseworker who removed the child, be whether a reasonable jury could conclude that the child was not at imminent risk of harm, or whether a reasonable caseworker in that particular caseworker’s position, could have concluded that the child was? The City asks the Supreme Court if the reasonable standard should be that of a jury or case worker. The City does not address the misrepresentations of fact by Woo to Family Court which started the taking of the children, or if a reasonable caseworker would misrepresent facts regarding a family. Neither does the City ask if a caseworker should be immune from damages resulting from deliberate, willful, or careless misrepresentation of facts.
2) The City asks whether Woo is entitled to qualified immunity where 5 Judges of the U.S. Court of Appeals for the Second Circuit agree that there was an absence of statutory or constitutional rules which Woo should have been aware of when he secured a warrant to search Southerland’s home and remove the children. Here, the City seems to be stretching by relying on the minority opinion. The majority opinion found in favor of Southerland. In addition, there are currently 13 judges in regular active service and 10 judges in senior status on the U.S. Court of Appeals for the Second Circuit.
In answering the NYC’s request for cert, Sonny Southerland’s attorneys (Lansner & Kubitschek) state there are only 2 questions regarding the Second Circuit’s finding in favor of Southerland. 1) Was the Second Circuit correct when it denied qualified immunity on the 4th amendment search claim when Woo “recklessly, knowingly, or intentionally omitted relevant information from his sworn application” seeking a court order to enter Southerland’s home “and the omitted information would have undercut a finding of probable cause?” 2) Was qualified immunity correctly denied for removing children from parent “without judicial authorization when a genuine issue of material fact existed as to whether [Woo] could have believed the child faced imminent harm?”
Lansner & Kubitschek’s answer to the Court states the city did not answer the illegal search claim. In addition, Southerland’s attorneys state that the city was raising an argument it had never raised during the 13 years the case had been litigated regarding “always” looking for a child in a home of the custodial parent even if the child did not live there.
The National Association of Social Workers (NASW) filed an amicus (friend of the court) brief. NASW seemed concerned with caseworker jobs and protection of their income while dismissing the serious liability and harm to families from a case worker who may “recklessly, knowingly, or intentionally omitted relevant information from his sworn application” for child removal. NASW prefers social worker oversight not be in federal court, but in the state, where its associations and unions can lobby elected officials and contribute financially to the campaigns of elected officials, potentially skewing legislation in favor of social workers. (Meanwhile, according to Southerland, Family Court personnel and foster care agency case workers routinely tell parents not to discuss their case with anyone — family, friends, advocates, or legislators, and parents are threatened that if they do talk about their Family Court case, they will never see their children again.) There is no mention of the rights of parents, who NASW calls “adjudicated abusers.” NASW also believes social workers should have the authority to determine child abuse “too soon”, Southerland believes the association is asking the Supreme Court to grant authority to presumably make pre-abuse, similar to pre-crime, determinations where no abuse exists.
Attorney King said Southerland exemplifies “The most remarkable display of courage and tenacity that I have seen from a parent. His kids were taken away from him illegally. He fought to get them back. He is at the point now after over a decade of fighting that he is just at the point to talk about the harm that was done to him. He is just getting to that point. It took a lot of patience.”