Full opinion text
REVISED MEMORANDUM' AND ORDER TRAGER, District Judge: This case presents the difficult dilemma faced by child protection workers, aptly characterized by the Second Circuit, in van Emrik v. Chemung County, 911 F.2d 863, 866 (1990) (Newman, C.J.), in the following language: “If [protective services caseworkers] err in interrupting parental custody, they may be accused of infringing the parents’ constitutional rights. If they err in not removing the child, they risk injury to the child and may be accused of infringing the child’s rights.” See also Defore v. Premore, 86 F.3d 48, 49 (2d Cir.1996) (citing van Emrik) (“Once again we confront a case in which publicly employed social workers are obliged to make the difficult choice between taking action to protect a child, thereby risking violation of the parents’ rights, and declining to at, thereby risking violation of the child’s rights.”) In this case the child protection workers, when faced with just this dilemma—under circumstances that almost certainly were the result of abuse that left an infant blind—chose to intervene and interfere with the parents’ rights in the belief that one of the parents may well have been responsible for the child’s injury. That decision, it turns out, may have been wrong and has brought upon them a lawsuit seeking substantial damages. But, as unfortunate as the situation is, in a world in which child protective workers can not be expected to be omniscient, this court finds it hard to fault these workers. Indeed, under the facts here, if the modest restrictions placed on the parents’ rights were improper, it is hard to conceive how an effective system of child protection can be maintained. Thus, the claim in this case is a marked contrast to the usual situation where the Child Welfare Administration (CWA), the City agency responsible for monitoring abused children, is condemned for inaction in the face of reported abuse or for the return of a child to its natural parents despite the agency’s knowledge or suspicion of prior abuse of the child. To the contrary, neither the child’s parents nor the babysitter—the only persons in contact with the child during the period when the injury occurred—had any prior history of violent or abusive conduct. The record indicates that they were caring, responsible individuals. Thus, CWA is now accused of violating the constitutional rights of parents and their child by taking custody of the child, allegedly without probable cause, by its refusal to return a child to his parents’ custody without restrictions, and by its failure to seek immediate court approval for its actions. The injury to the child occurred on December 20, 1988, when he, then six months old, was blinded by being shaken violently. The child was hospitalized on the date of the incident, and the hospital, at the treating physician’s direction, filed a report of abuse with the State Child Abuse and Maltreatment Register. Without seeking a court order, on Friday, December 23, 1988, the day after the initial report of abuse was received by CWA, after an evening visit with the parents and the grandparents in the grandparents’ home, the CWA caseworker arranged for the child’s release from the hospital over the Christmas weekend to his maternal grandparents with the parents given complete access to him, subject only to supervision by the maternal grandparents. During the following week, after the child was readmitted to the hospital on Wednesday, December 28th, for further treatment, CWA notified Mr. and Mrs. Dietz that it would seek court approval to restrict the parents’ custody of the child and brought a petition to Family Court on Tuesday, January 3, 1989, the beginning of the following week. Until March 1989, the Dietzes were suspects in their child’s abuse. Criminal charges were subsequently brought against the child’s babysitter in September 1989, but that indictment was dismissed in March 1991. A second grand jury refused to issue an indictment. The babysitter, Diane McGurn, is a defendant in this action, on a pendent state claim, and has interposed counterclaims for defamation and malicious prosecution against plaintiffs. The City of New York (City), defendant, and the individual City defendants have moved for summary judgment on grounds that the actions of the City’s agents, the individual City defendants, did not violate any constitutional rights of the plaintiffs and were, further, duly authorized under New York State law. In the alternative, the City individual defendants have moved for summary judgment in their personal capacities on the basis of qualified and absolute immunity. As a third alternative, the City offered plaintiffs $1.25 in damages as the full monetary value of any violation of procedural due process rights they may have suffered. Background (1) Plaintiffs in this case are James Dietz and his parents, William and Lenore Dietz. It is undisputed that on the morning of December 20, 1988, James, then six months old, was shaken violently by an adult, and, as a result, James suffered massive hemorrhages in his skull which left him blind. No witnesses to this shaking have been identified. The finding that James’ injuries were intentionally inflicted as the result of shaking by an adult was made by physicians based on James’ symptomatology and medical tests, all indicating that James suffered Whiplash Shaken Infant Syndrome (WSIS). The shaking had to be vigorous and “to have to be at least a minute or longer” in duration. See Giridharan at 13, 17-23, City Ex. F., McHugh Ltr., City Ex.-O. James first manifested symptoms of distress about 10:30 on the morning of December 20, 1988, at the home of his babysitter, Diane MeGurn. His mother, Lenore Dietz, dropped James off at his babysitter’s home between 7:00 and 7:30 a.m. on Tuesday, December 20, 1988. His father, William Dietz left for work at 6:30 a.m. James had been seriously ill for several days prior to December 20, 1988, with symptoms including vomiting and listlessness. In the early morning hours of Saturday, December 17, Mrs. Dietz called James’ pediatrician at 1:30 a.m. and 3:00 a.m. and then again at 9:00 a.m. Mrs. Dietz stayed home for two days, Friday and Monday, because of James’ illness. She was employed as director of merchandising for a jewelry company. Although James was better on Sunday, December 18, 1988, Mrs. Dietz stayed home on Monday to be sure of his recovery. She had taken James to his pediatrician when he was first ill and called the pediatrician six times during James’ illness. She was up all night with him on Saturday, December 17, 1988. Mrs. Dietz stated that she and James woke at about 6:15 a.m. on Tuesday, December 20, 1988, and arrived at the babysitter about 7:15 a.m. L. Dietz Notes, Murray Reply Aff. dated August 2, 1995, Ex. AA. In her deposition in 1992, Dr. Giridharan, the neurologist who treated James at Brookdale Hospital, dismissed the suggestion that James’ injury was a continuation of his prior illness. Giridharan at 15-16, City Ex. G. Mrs. McGurn reported that James was a little cranky when Mrs. Dietz brought him to her on December 20, 1988 about 7:15 a.m. She told Damas that Mrs. Dietz had “carried [James] like a football underarm.” Damas case notes, City Ex. I at 6. (Later the ambulance attendants had to walk up to Mrs. McGurn’s sixth floor apartment because the elevator was not working when they arrived. McGurn Police Interview, Pltf. Ex. A. However, there is no evidence that the elevator was not working when Mrs. Dietz arrived with James.) Mrs. MeGurn reported that, after he arrived, James drank a bottle and then fell asleep. Id. and Damas case notes at 7. Later James awoke and Mrs. McGurn offered him more milk. There is an inconsistency in the records as to the amount of milk James took at this time. This discrepancy would later become critical to a determination of the time of abuse, but no evidence was presented that Mrs. McGurn or anyone else perceived that this was so in December 1988 when Mrs. McGurn was questioned about this subject. Detective Diggs, who conducted the police investigation of the abuse incident, noted that on December 22, 1988 Mrs. McGurn told him that James took seven ounces. While Mrs. McGurn was giving (or attempting to give) the second bottle to James he became stiff and made “funny sounds.” Pltf. Ex. A. In contrast, Damas’ case notes of his December 27, 1988 conversation with Mrs. McGurn state that she said only that she had tried to feed the child again. Damas case notes, City Ex. I. Damas stated at his deposition that Mrs. McGurn said that when she attempted to give him a second bottle, James had “started to get stiff, writhing like a snake.” Damas I at 99-101, City Ex. H. When Mrs. MeGurn observed James’ distress, she called a private ambulance service directly and it came three minutes later. The ambulance records show that the call came at 10:33 a.m., the ambulance arrived at Mrs. McGurn’s building at 10:36 a.m. and at Lutheran Hospital at 10:47 a.m. Because of the severity of James’ condition, the ambulance attendants took James without waiting for MeGurn to dress and obtain care for the other two children in her apartment. Police Interviews of Mrs. McGurn, Mr. Dietz, Bravo Ambulance official Kelly, Mrs. Byrne (neighbor who took care of children while McGurn at hospital), Pltf. Ex. A. After getting a neighbor to care for the other children, Mrs. McGurn phoned Mrs. Dietz at her place of employment and then took a taxi to the Lutheran Hospital. It is not clear whether Mrs. McGurn gave any information about James to the medical staff at Lutheran Hospital. After a while Mrs. Dietz arrived with a man who, Mrs. McGurn later learned, was Mrs. Dietz’ boss. When, later, James was to be transferred to another hospital, Mrs. Dietz’ sister Diane gave Mrs. McGurn a ride home. Id. As noted, James was brought to Lutheran Hospital in late morning on December 20, 1988, but, later that same day, he was transferred to Brookdale Hospital. Two days after James’ admission, on December 22, 1988, Brookdale Hospital notified the State Central Child Abuse and Maltreatment Register, using the 2221 report form, that James was a victim of child abuse, indicating that Mr. and Mrs. Dietz were suspected. City Ex. J. During her deposition, Dr. Giridharan acknowledged that it was she who, on December 21,1988, directed hospital staff to initiate a child abuse report about James’ condition. Giridharan at 22, City Ex. G. The initial child abuse report from Brook-dale Hospital clearly overstated the case against Mr. and Mrs. Dietz by stating that “parents did not bring child to emergency room until 8:00 p.m. that same evening.” The report also included the statement: “mother’s apparent lack of bonding to the baby ie very distanced.” City Ex. J. The CWA caseworker assigned, Harold Damas, testified: “I didn’t even pay attention to that [initial child abuse report], really,” noting that such reports frequently contain inaccuracies. Damas I at 55, City Ex. H. Upon questioning by Damas, the person who made the report for Brookdale admitted she was unaware of James’ initial hospitalization in the morning at Lutheran hospital. Damas case notes at 8, City Ex. I. The State Central Register then sent a copy of the 2221 report of abuse to CWA the same day it received it, December 22, 1988. CWA assigned Damas to investigate the case. Daniel Elmore was Damas’ supervisor from December 22, 1988 through January 3, 1989, when the city filed a child abuse petition against Mr. and Mrs. Dietz in Family Court. After January 3, 1989, Damas was promoted to a supervisory position and transferred to another unit, where he was supervised by Marcia Lewis. Damas retained the Dietz case after his promotion and transfer. Damas, Elmore, and Lewis, along with then-HRA Commissioner Grinker and Deputy Commissioner Trent (who do not actually figure in these events) are all named defendants, and will be referred to as the “City individual defendants.” After its receipt of the child abuse report from the State Register, on December 22, 1988, Dr. Grillo, the resident who was treating James at Brookdale Hospital, confirmed to Damas the diagnosis of Whiplash Shaken Infant Syndrome. Damas recorded in his notes that “Dr. Grillo said that he did not know anything. He would not guess as to who did this.” CWA told Dr. Grillo to place a “hold” on James that required the hospital to keep James after he was deemed to be medically dischargeable. Damas also noted that Dr. Grillo stated that “he had utmost confidence in [the grandparents].” Damas case notes, City Ex. I. CWA wanted time to investigate the case before James was released to his parents. Damas tried to see Mr. and Mrs. Dietz on December 22, 1988 at their home. Although unsuccessful in his attempt, he left a W555C notice at their front door which notified them that they were named as subjects in a report of child abuse. The notice also informed them of their rights to request amendment or expungement if the report were found to be “indicated” (i.e., substantiated), and provided Damas’ name and telephone number. Damas I at 50-60, 65-72, City Ex. H, W-555C attached as City Ex. K. On December 23, 1988, Damas met with Mr. and Mrs. Dietz and Mrs. Dietz’ parents, the Salmos, at the Salmos’ home. Damas stated that he thought he went to the Sal-mos’ home because they had called him, in response to the W555-C. Damas I at 75, City Ex. H. Damas received calls from Mr. and Mrs. Dietz and Mr. Salmo asking him to conduct the interview on December 23, 1988 rather than waiting until December 27,1988, which would have been after the Christmas holiday. Mrs. Dietz acknowledged that one of her parents had suggested, in a phone conversation with Damas, that they could undertake to supervise James’ contact with his parents. This was the reason that the home visit was conducted at the Salmo residence. L. Dietz at 19, City Ex. D, attached to Murray Aff. dated March 31, 1995. Mr. Damas refers to the concern of Mr. Elmore, his supervisor, that they lacked medical information sufficient to determine whether James could be released to his parents but had stated that it might be possible to discharge him to his grandparents if they were not listed in the Child Abuse Register, the home visit was favorable, and the Salmos and Dietzes agreed to CWA’s conditions. Damas I at 76, 86, City Ex. H. Damas conducted his interview with Mr. and Mrs. Dietz and Mr. and Mrs. Salmo, all together, at the Salmos’ home. Damas noted that Mrs. Dietz, while Mr. Dietz was speaking, “went to the kitchen and stayed there for a few seconds, running her fingers through her hair and returned to living room.” Damas case notes, City Ex. I. The City claims that it was agreed by everyone that James would be released to the Salmos, and that the parents could stay with James, subject to the grandparents’ supervision. In her deposition, Mrs. Dietz stated that the arrangement to place James in the custody of her parents was arranged “out of desperation,” at the suggestion of her father, because “Mr. Damas told [her] that the baby was not going to be released to orneare.” L. Dietz Dep. at 18, City Ex. D, attached to Murray Aff. dated March 31, 1995. Damas recalled that the Dietzes “really didn’t have any objection to James going there.” Damas I at 80, City Ex. H. Mrs. Dietz acknowledged that the family was very concerned about the approaching Christmas holiday. “We were very concerned with coming home with James for Christmas.” L. Dietz Dep. at 20, City Ex. D attached to Murray Aff. dated March 31, 1995. Damas, after talking with the Salmos and Dietzes and inspecting the Salmos’ home, gave the Salmos a letter that would authorize the hospital to release James to them. Damas also recorded in his notes of this meeting that he requested “that they [Salmos and Dietzes, presumably] should keep him inform (sic) of any changes that child was going through.” Damas case notes, City Ex. I. James was released to his grandparents on Saturday, December 24, 1988. The Salmos and Mr. and Mrs. Dietz had a very close relationship. The Salmos were at both Lutheran and Brookdale Hospital with Mr. and Mrs. Dietz. Mr. Salmo had contacted Damas on Mr. and Mrs. Dietz’ behalf. Mr. and Mrs. Dietz had planned to spend the Christmas holidays with the Salmos prior to James’ injury. L. Dietz at 18, City Ex. D, attached to Murray Aff. dated March 31, 1995. Mr. and Mrs. Salmo took care of James for one week when he was two months old and Mrs. Dietz went to the Orient on business. During the Salmos’ care for James at that earlier time, Mr. Dietz visited daily but did not stay over-night with James. Id. at 36. During James’ second hospitalization, Mr. and Mrs. Dietz continued to stay at the Salmos’ house. Id. at 30. James returned to Brookdale Hospital for a prearranged follow-up appointment with Dr. Giridharan on December 26, 1988, at which time an appointment was made for his readmission to the hospital on December 28, 1988, to treat the symptoms identified, in-eluding his bulging fontanel. (The fontanel is the soft spot on a baby’s head, where the skull has not yet formed a single bony mass.) Giridharan Rpt. dated January 11, 1989, City Ex. BB, attached to Murray Aff. dated February 14, 1994. These symptoms required a second and, ultimately, a third spinal tap (lumbar puncture). Dietz at 26-27, Giridharan Rpt. dated January 11,1989, City Ex. BB, attached to Murray Aff. dated February 14, 1994. (2) On December 28, 1988, Damas learned of James’ readmission to Brookdale Hospital from the Brookdale staff member who was also the source for the original report of abuse and its errors. (Based on Damas’ notes and testimony, neither the Dietzes nor the Salmos appear to have notified CWA about James’ readmission to the hospital nor the reasons for it. Damas called Mr. Salmo and told him again, as he had on December 23, 1988, to keep him informed.) This Brookdale Hospital staff-member told Damas that James had not been medically ready for discharge on December 24,1988 and that the parents had been less concerned with James’ condition than with obtaining his release for the holidays. This staff-member also stated that she found Mrs. Dietz somewhat distant when she questioned her, and that Mrs. Dietz had said that Mrs. McGurn was very good with James. Damas case notes, City Ex. I. On Damas’ questioning, this staff-member acknowledged that she had not known that James’ admission to Brookdale had been as a transfer from Lutheran Hospital. Id. Also, on December 28, 1988, Damas spoke to Detective Diggs who informed him “that he was unable to determine who committed this act against child. [Diggs] said that he could not establish any time frame as to when incident happened---- [Diggs] said he had no proof that that babysitter did anything to child.... [Diggs] said that he went around and questioned a few people. They only had high praise for Mrs. McGurn.” Id. Damas attempted to reach Dr. Giridharan, the treating physician, without success on December 29, 1988. Damas case notes, City Ex. I. On December 30, 1988, Damas spoke to Dr. Giridharan, but despite Damas’ pointed questioning, she refused to pinpoint the time of occurrence. Damas I at 124-130, 133-35, City Ex. H, Giridharan at 5-6, City Ex. F. Damas testified at his deposition: “The case solely depended on Dr. Giridharan’s statement, nothing else. It was “When did it happen? When did that person shake James?’ That’s the whole basis for the case.” Damas I at 130, City Ex. H. Detective Diggs had interviewed Dr. Giridharan on December 22, 1988. His report also noted Dr. Giridharan’s refusal to limit the time in a way that would exclude Mr. and Mrs. Dietz from suspicion: “The Doctor [Giridharan] said it had to of [sic] happened on that day Tuesday but she could not give a time.” Giridharan Police Interview, Pltf. Ex. A. Dr. Giridharan’s deposition testimony also confirms Damas’ account: “[E]arly in the conversation I had pointed out to Mr. Damas that my role is to take care of the medical aspects and that I would leave the investigations up to him. Not wanting to be specific, I wanted to say ‘few [hours before the symptoms became manifest].” Giridharan at 5, City Ex. F. Also: “[Damas] asked me [to be more specific as to a time frame] and I repeated I could not be specific.” Id. at 26. Q: “Did Mr. Damas inform you of the importance of establishing a time frame during this conversation?” A: “Of course.” Q: “And still based on that you would not give him a time frame?” A: “No.” Id. at 28-29. On December 29, 1988, Elmore, Damas’ supervisor, noted calls from Ms. Angela Christofidef of the Neighborhood Stabilization Board, a division of the City Human Rights Commission, from Mr. Fred Molloy of Councilman Sal Albanese’s office, and from Mr. Salmo, all expressing concern about the continuing suspicion of the Dietzes. Elmore also received a call from Detective Diggs, who reported that the same people had called him. Elmore case notes, Pltf. Ex. J. Damas’ notes indicate that CWA’s second “hold” was placed on December 30, 1988. Damas’ notes record a conference with Elmore and Mr. Fenton, the Zone Director, at which Fenton directed that a petition should be filed and that the “child should not be returned to grands. He said to let the judge make the decision.” There is a reference to Fenton having contact with “Dr. Margaret McCue from Bellevue Hosp. who’s an expert in the field of pediatrics and is also regarded as an expert in ct. Dr. McCue wanted to know the estimation of blood in brain.” There is also a notation that Fenton wanted the diagnosis changed to Battered Child Syndrome. However, Damas’ notes continue that when Elmore called Dr. Giridharan, she refused to change the diagnosis. Damas ease notes at 10-11, City Ex. I. (3) Although the complaint, ¶ 30, states that James was ready for medical discharge only on January 3,1989, Mrs. Dietz’ notes, provided at her deposition, indicate that James received medical clearance for discharge on December 31, 1988, a Saturday. City Ex. AA at 10, attached to Murray Aff. dated August 21,1995. Dr. Giridharan’s notes confirm that a third spinal tap was performed on James on December 30,1988. It is undisputed that James remained in the hospital until January 3,1989. Mrs. Dietz and other members of her family, including Mr. and Mrs. Salmo, were with James in the hospital around the clock. L. Dietz at 29-30, City Ex. D, attached to Murray Aff. dated March 31, 1995. If James was ready for medical discharge on Saturday, December 31, 1988, the CWA hold prevented his release from that date until the hearing on Tuesday, January 3, 1989, the next day Family Court was in session. On January 3, 1989, the CWA child abuse petition was heard in Family Court and James was released to the custody of his grandparents. Plaintiff alleges that, at the hearing, the City requested that the court remand James to the custody of the Commissioner of Social Services. The court, however, “remanded James with the privilege of parole to the custody of [the Salmos and] ... granted unlimited supervised visitation rights to Lenore and William Dietz.” Parker Aff. dated July 29, 1992 ¶ 10. Parker was the CWA attorney responsible for the petition in Family Court. The docket sheet included the notation that James should have “no unsupervised contact with his parents.” City Ex. M. In his deposition, Parker explained that he, although a supervisor, was assigned to the case because “220 Church Street,” HRA headquarters, had requested that a more experienced person be assigned. “[I]t was an unusual case and ... the parents were being represented by a private attorney who was a friend of somebody at central office.” Parker I at 23. Parker identified the person at central office as Gene Skarin, not a named defendant. Id. at 26. It is undisputed that Mr. and Mrs. Dietz were never denied contact with their son, but that this contact was subjected to supervision by the Salmos from James’ initial release on Saturday, December 24, 1988, to his hospital readmission on Wednesday, December 28, 1988, and, with the approval of Family Court, from his release from the hospital on Tuesday, January 3, 1989 until April 7, 1989. Mr. and Mrs. Dietz’ ease came to Family Court again on February 16, 1989, where the discharge to the Salmos and restriction on unsupervised contact by the Dietzes was reconfirmed and the case adjourned to April 7, 1989. Parker Aff. ¶ 12, attached to City Mot. For Summ. J. dated July 31, 1992, Family Court docket sheet, City Ex. M. (4) The uncertainty about the identity of the abuser arose because the symptoms of WSIS may become manifest several hours after the baby is shaken. CWA was not sure, throughout the period both prior to and following the Family Court hearing on January 3, 1989, whether Mr. or Mrs. Dietz or Mrs. MeGurn was the person who caused James’ injury. Only in March 1989, when Dr. Giridharan wrote Parker and limited the time frame to exclude Mr. and Mrs. Dietz was there any basis on which a determination could be made as to the culprit. Thereafter, “the Court paroled James on April 7, 1989 to the care and custody of his parents and put the ease over until June 8, 1989 pending the obtaining of a second opinion from an independent expert.” Parker Aff. ¶ 14. The Family Court remand on April 7,1989 included the direction that “[CWA] to supv. strictly.” Family Court docket sheet, City Ex. M. Mr. and Mrs. Dietz retained Dr. McHugh for this purpose. She was the Director, Child Protection Team, Bellevue Hospital Center. (Damas recorded in his notes that the Zone Director, Mr. Fenton, had contacted Dr. Margaret MeCue (sic) on December 30, 1988. City Ex. I.) Based on her review of the records and placing especial emphasis on Det. Diggs’ report that Mrs. MeGurn stated that James took eight ounces of milk immediately prior to his manifestation of symptoms, Dr. McHugh opined, in an undated letter: “Such injuries [with “subarachnoid hemorrhage and bilateral retinal hemorrhages”] would result in a listless, if not comatose, child who could not have fed well three hours later.” City Ex. 0. After Mr. and Mrs. Dietz submitted Dr. McHugh’s undated letter, the CWA attorney, Parker, on June 8,1989, “withdrew the abuse petition against Lenore and William Dietz without prejudice with three months supervision.” Id. ¶ 16. Following the period of supervision (which lasted longer than three months, possibly as the result of Mrs. Dietz’ absence on a trip to Hong Kong), the case was closed after a final visit by CWA staff on October 31, 1989. Mrs. Dietz’ request for expungement of the child abuse report in the State Child Abuse and Maltreatment Register was granted on March 12,1992. Pltf. Ex. H. (5) Although Mr. and Mrs. Dietz place full blame for the incident on the child’s babysitter, Diane MeGurn, Detective Diggs told Damas on December 28, 1988 that he was unable to determine who committed the act. The police formally concluded on January 21, 1989 that they were unable to establish who committed the assault on James. Pltf. Ex. A, Det. Diggs’ Report dated January 21, 1989. Subsequently, in a letter dated March 8, 1989, James’ physician, Dr. Radha Giridharan, narrowed the window of time in which he might have been shaken and, thereby, eliminated Mr. and Mrs. Dietz from suspicion. In her letter, Dr. Giridharan stated: “In my clinical judgment and evaluation the bleeding occurred within a couple of hours (2) prior to his presenting to the Lutheran Medical Center.” City Ex. N. In her deposition, Dr. Giridharan explained how she came to write the letter: And as time went on, because he was given to the grandparents and the decision had to be made, and by that time I was very comfortable with the Salmos and the Dietzes____ [Upon their request] if this is going to be interpreted as three, four and five, which I never said, I said okay, I am willing to make it as a couple, which will then narrow it down. Giridharan at 34, City Ex. F. On September 24,1989, Mrs. MeGurn was indicted for the crime. (Indictment attached as City Ex. T.) The District Attorney did not call Dr. Giridharan to the Grand Jury, but used Dr. Margaret McHugh as its WSIS medical expert. Justice Anne G. Feldman dismissed the indictment in March 1991, noting that: “... it was apparently Mrs. Dietz who brought Dr. McHugh’s opinion to the attention of the prosecutor.” Mem.Sup. Kings County, March 19, 1991, City Ex. U. Mrs. McGurn’s indictment was dismissed because the prosecutor failed to present any evidence to the grand jury that implicated Mrs. Dietz in the abuse and permitted Mrs. Dietz to testify that “James was released to her care on both [releases from hospitalization].” Id. The prosecutor also failed to instruct the grand jury properly with regard to the weight to be given the expert testimony presented. Id. Upon resubmission of the ease against Mrs. MeGurn to a grand jury, it refused to indict. Present Action Mr. and Mrs. Dietz brought this suit on their own behalf and on behalf of their son, alleging constitutional and state law violation cognizable under 42 U.S.C. § 1983 on December 18, 1991 against the City and City individual defendants. They also have alleged pendent state claims against the City as well as a pendént state tort claim in negligence against Mrs. MeGurn. In her answer, Mrs. MeGurn has asserted counterclaims against Mr. and Mrs. Dietz for malicious prosecution and defamation, founded specifically on Mrs. Dietz’ testimony to the Grand Jury concerning the conditions under which James was released from the hospital and has asserted that any harm that befell James Dietz occurred while he was in their exclusive control. Plaintiffs allege eleven causes of action. The first, second, third, fifth, sixth, seventh and eighth (against the City and individual City defendants) arise under 42 U.S.C. § 1983, the fourth (also against the City and individual City defendants) under the United States Adoption Assistance and Child Welfare Act, 42 U.S.C. § 671(a), and the ninth and tenth claims (against the City and the individual City defendants) are pendent state law claims sounding in negligence and libel. The plaintiffs eleventh cause of action is a state law claim sounding in negligence against the babysitter, Mrs. MeGurn, as a pendent party. Mrs. McGurn’s counterclaims are also asserted under state law. The § 1983 causes of action asserted against the City and the City individual defendants allege: First: under “a policy of removing and detaining children from their parents without probable cause and without due process of law,” Compl. ¶ 48, they wrongfully took “custody” of James without providing Mr. and Mrs. Dietz timely notice and an opportunity to be heard. Second: by “providing] grossly inadequate and unprofessional training and supervision to their agents and employees regarding the investigation of child abuse complaints and probable cause determinations,” Compl. ¶ 61, they conducted a constitutionally inadequate investigation which led it to target Mrs. Dietz as a suspect. Third: their actions against Mr. and Mrs. Dietz were pursuant to a malicious and retaliatory policy, in violation of Mr. and Mrs. Dietz’ First Amendment rights, because the Dietzes had complained to CWA supervisors and management and some politicians about the way the CWA was conducting its investigation. Fourth: they violated the United States Adoption Assistance and Child Welfare Act, 42 U.S.C. § 671(a). Fifth: they violated New York statutes and regulations, cognizable under § 1983, “requiring] Department of Social Services employees to provide services to preserve families prior to removing children and to reunify families subsequent to the children’s removal.” Compl. ¶ 78. Sixth: they unlawfully interfered with parental rights. Seventh: they unlawfully imprisoned the infant. Eighth: they abused governmental power in labeling Mr. and Mrs. Dietz child abusers, thereby violating Mr. and Mrs. Dietz’ rights to privacy, depriving them of liberty and reputation. Ninth: negligence. Tenth: libel. Defendant McGurn has alleged any injury to James Dietz occurred while he was in the custody and control of Mr. and Mrs. Dietz and has asserted defamation and malicious prosecution claims against Lenore Dietz. The City first moved for summary judgment on August 5, 1992, on grounds that there were no issues of material fact regarding the absence of a constitutional violation in the City’s actions with regard to the Dietz family and, even if that were denied, that the individual defendants were entitled to dismissal of the claims against them on the basis of their qualified immunity. On September 16, 1992, Judge Dearie ordered the withdrawal of the City’s motion, pending the completion of discovery agreed to by the parties. Thereafter, plaintiffs conducted voluminous discovery of the City individual defendants and'other City officials. Dr. Giridharan was deposed by all parties. The plaintiffs filed papers in opposition to the motion for summary judgment in November 1993. The ease was transferred from Judge Dearie to this Court on January 21, 1994. This Court, at oral argument on March 11, 1994, denied the City’s motion for summary . judgment, with leave to renew following a deposition of the plaintiffs (subsequently clarified to refer to Mrs. Dietz) to obtain her account of her alleged consent to James’ placement with the Salmos and to ascertain the nature of the claimed deprivation. Once this deposition was completed, the Court gave the City leave to renew the motion that any deprivation was de minimis, as well as to renew the motion for summary judgment. The Court also stayed discovery on Monell claims and with respect to defendant McGurn. In August 1995, the City submitted a renewed motion for summary judgment. Oral argument on this renewed motion was heard on October 24,1995. Discussion The primary legal issue presented by this case is what process is due to parents suspected of abusing their child where, in response to a deliberately inflicted and severe injury to a child, the child protection agency has imposed restrictions upon parental contact with and control of their child, without, however, removing the child from contact with the parents. The case also raises claims regarding alleged constitutional violations (and alleged violations of state law argued by plaintiffs to be cognizable under 42 U.S.C. § 1983) related to child abuse investigations and prosecution, as well as a number of state law claims. These issues are presented in the context of a summary judgment motion by the City and the City individual defendants, in which justifiable inferences must be drawn in favor of the plaintiffs, although the plaintiffs must produce evidence that would support a jury verdict. The standard for deciding motions for summary judgment is specified in the Federal Rules of Civil Procedure: Rule 56(e) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). “On a summary judgment motion, the court is not to weigh the evidence, or assess the credibility of witnesses, or resolve issues of fact,” Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir.1995), but, as the Supreme Court noted in Celotex Corp. v. Catrett: “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses,” 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Although all justifiable inferences of the non-movant are to be credited, the non-movant must offer some “concrete evidence from which a reasonable juror could return a verdict in his favor____ The movant has the burden of showing there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.” Anderson at 256, 106 S.Ct. at 2514. Not all disputed facts are a basis for denying summary judgment. “The non-movant may defeat summary judgment only by producing specific facts showing that there is a genuine issue of material fact for trial.” Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996). 1. The Individual City Defendants Had an Objectively Reasonable Belief that an Emergency Existed When CWA Placed “Hold” on James Dietz on December 22, 1988. (1) The Supreme Court has stated: “Due process ... is a flexible concept that varies with the particular situation.” Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108 L.Ed.2d 100 (1990). The Court further defined the factors that must be weighed to determine “what procedural protections the Constitution requires in a particular case:” First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 127, 110 S.Ct. at 984 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)). Plaintiffs have alleged that the procedure followed by the City and the individual City defendants violated state law. However, a violation of state law does not in itself establish a constitutional violation for which remedy may be sought under 42 U.S.C. § 1983. In Robison v. Via, 821 F.2d 913, 922-23 (2d Cir.1987), referring to a similar claim with regard to the seizure of children suspected of having been abused without “being taken directly to the juvenile court as required under [Vermont law],” the Second Circuit held that: “Federal constitutional standards rather than state statutes define the requirements of procedural due process.” “[E]ven if the phrase ‘immediate danger’ in the Vermont statute sets a standard different from the ‘emergency’ standard under the due process clause as we have described it, a violation of state law neither gives [plaintiff] a § 1983 claim nor deprives defendants of the defense of qualified immunity to a proper § 1983 claim.” Id. at 922. (2) It is widely recognized that child abuse proceedings, especially those following immediately upon discovery of a child abuse emergency, involve special interests that are different from those implicated in criminal proceedings. Critical to these special interests is the need to balance the interests of the parents against that of preventing further injury to the child. The law of this Circuit, as well as of other federal courts, is clear that, constitutionally, no prior hearing is required to remove a child from parental custody in an emergency situation. “[I]t was, and remains, equally well established that officials may temporarily deprive a parent of custody in ‘emergency’ circumstances “without parental consent or a prior court order.’ ” Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987) (quoting Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.1977)) (other citations omitted). See also Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.1983): “When a child’s safety is threatened, that is justification enough for action first and hearing afterward.” Plaintiffs, in their brief, place great emphasis on Hurlman v. Rice, 927 F.2d 74 (2d Cir.1991). See Pltf.Brf. dated November 19, 1993, at 46-19. Plaintiffs argue that the facts before this court are “virtually identical” to those in Hurlman. In Hurlman, the Second Circuit found that jury questions existed as to whether it was objectively reasonable for each of the state troopers involved in the seizure of the child to believe the child there was in danger where there was only “the mere ‘possibility’ of danger.” However, the seizure of the child in Hurlman by the state police (with no involvement by child protection services) was essentially the result of intervention by the police on behalf of a colleague in a custody dispute. The alleged “possibility of danger” to the four year old girl in Hurlman was from the child’s grandfather who had pled guilty eighteen months earlier to a misdemeanor charge that he had given a Reader’s Digest article on how to stop child prostitution to his seven year old grandson. The child’s father was a state trooper who had persuaded his colleagues to seize his daughter about midnight from her mother, who lived with the mother’s parents. Four days after her seizure, the child was returned to her mother by order of the family court. 927 F.2d at 78. The Hurlman court stated: “Emergency circumstances mean circumstances in which the child is immediately threatened with harm ...” It gave the following examples of such threats: “where there exists an immediate threat to the safety of the child, or where the child is left bereft of care and supervision, or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence.” Id. at 80 (quotations omitted). The Hurlman court distinguished its facts from those in Robison v. Via in the following manner: “[T]he reported harm to the Robison children was physical and was ongoing, and there was no room for any inference that there was not an emergency situation.” Id. at 80. Thus, knowledge of an emergency, or objectively reasonable belief that there is “serious ongoing abuse and the officials have reason to fear imminent recurrence,” id., would create an important basis for distinguishing the case before this court from Hurlman. Hurlman represented essentially private action undertaken for private purposes by public actors. Where “there [is] no room for any inference that there was not an emergency situation,” id., the court may direct summary judgment for the state actors. (3) There is no material fact at issue that the Report of Suspected Child Abuse or Maltreatment (the 2221) filed by a hospital staff member at Dr. Giridharan’s direction, notifying the State child abuse central registry that James had been admitted to hospital for injuries resulting from Whiplash Shaken Infant Syndrome, provided notice of an emergency to CWA. There is also no dispute that CWA received this report on December 22, 1988 and assigned responsibility for its investigation to CWA caseworker Harold Damas. CWA placed a hold on James’ discharge from the hospital on the basis of that report and Damas’ conversation with Dr. Grillo on December 22,1988. The report indisputably stated that James’ parents were suspects in James’ abuse. (It is also indisputable that the report contained some statements later determined to be erroneous.) The report had been made by a hospital staff member, at the request of the treating physician, Dr. Giridharan, who was legally obligated to report suspected abuse. Such a report of an emergency, filed by an identified, disinterested person with cause to know of abuse and a legal obligation to report it, confirmed by the treating resident physician, constitutes objectively reasonable evidence of an emergency to child protective personnel. Further, Damas’ conversation with Dr. Grillo confirmed the report in essential elements. The analogy of Mr. and Mrs. Dietz’ situation to the facts in Hurlman that plaintiffs would have the court draw is simply unconvincing. There, state troopers sought to establish that the statements of a fellow officer that his daughter was at risk of sexual abuse from her grandfather created an objectively reasonable belief that an emergency existed. In Hurlman, there was an obvious private interest on the part of the state actor reporting the abuse, there was no actual objective injury, and there was no inquiry into the circumstances. Here, the report of abuse was by a disinterested third party, there was objective evidence of physical abuse, and the inquiry at the hospital confirmed the basic outlines of the report. Until Damas met with Mr. and Mrs. Dietz on the evening of Friday, December 28,1988, the errors in the 2221 were not known to CWA. (Damas had attempted to meet with Mr. and Mrs. Dietz on December 22, 1988, the day CWA received the 2221 report, by going to their home. He left a copy of the W-555C form at their home, notifying them that the report had been filed and giving them his phone number. City Ex.K.) Indeed, before CWA knew that some of the information in the 2221 was erroneous, that is, until Damas met with the Dietzes and Salmos on the evening of December 23,1988, CWA would be seen to have been derelict in its duty to protect James had it not prevented his discharge to his parents. When Damas became aware of the overstatement of the case against Mr. and Mrs. Dietz in the 2221 report, he consented to the proposal made by Mr. Salmo to discharge James to his grandparents, the Salmos. The discharge permitted Mr. and Mrs. Dietz to have contact with James under the supervision of Mrs. Dietz’ parents. This decision greatly limited the infringement on Mr. and Mrs. Dietz’ custody of James, as it never prevented their contact with him, either in the hospital or in a family setting. However, although Damas learned that the case against Mr. and Mrs. Dietz in the 2221 report had been overstated, the new information he now had did not exonerate the Dietzes. From his meeting with Mr. and Mrs. Dietz, Damas learned the time parameters of Mr. and Mrs. Dietz’ and Mrs, McGurn’s contact with James. These parameters made determining the time of the shaking essential. Moreover, contrary to plaintiffs’ assertion, nothing in Damas’ notes or testimony indicates that Mr. Dietz had been cleared of suspicion in this time period. Damas’ case notes suggest that Mrs. Dietz’ conduct while Mr. Dietz was speaking, at the meeting on December 23, 1988, when she “got up for a moment and went to the kitchen and stayed there for a few seconds, running her fingers through her hair and returned to living room,” might well have raised some suspicions of Mr. Dietz in his mind. CWA’s understanding of the time frame in which the abuse could have occurred throughout the period until it was narrowed by Dr. Giridharan in March 1989 was still long enough to include Mr. Dietz as a suspect. Thus there is no need to determine whether CWA should have attempted to remove Mrs. Dietz from their home in order to minimize interference with Mr. Dietz’ custody of his son. Thus, the initial assertion of custody by CWA was fully warranted by objectively reasonable notice of a child abuse emergency. The Second Circuit has held, in factual circumstances remarkably similar to those before this court, that a child protective agency’s assumption of total custody of a child was objectively reasonable and thus did not violate the parents’ constitutional rights. van Emrik v. Chemung County Dep’t of Social Serv., 911 F.2d 863 (2d Cir.1990). There, as here, an infant was admitted to a hospital with serious physical injury suggestive of child abuse, the time frame of abuse implicated both a babysitter and the parents, none of whom had any history or indicative psycho-social factors suggestive of abusive behavior, and, ultimately, no conclusive determination was made as to who, if anyone, abused the child. In van Emrik, the court cautioned against “fault[ing] the manner in which the temporary removal was effected.” 911 F.2d at 866. “The issue is whether it was objectively reasonable for the defendants to make the decision they made, and no rational jury could find that it was not.” Id. In van Emrik, the Second Circuit affirmed the district court’s dismissal of a suit against the county and, with one exception not applicable here, held that the actions taken by the social workers and agency “show no impairment of a constitutional right.” Id. It thus affirmed the entitlement of the individual defendants to qualified immunity. As noted at the outset, in van Emrik, the Second Circuit explicitly acknowledged the “difficult alternatives” faced by child protection caseworkers “in the context of suspected child abuse.” Id. at 866. A recent case in this district has also considered the due process issues concerned in seizure of a child under the perception that a child abuse emergency exists. In Tenenbaum v. Williams, 862 F.Supp. 962, 971-72 (E.D.N.Y.1994); mot. for rearg. denied, 907 F.Supp. 606 (E.D.N.Y.1995), Judge Hurley held that, as a matter of law, there was no due process violation in the emergency removal of a child from the custody of its parents on the basis of a report by the child’s teacher that the child had indicated that she had been sexually abused by her father. He concluded, however, that a probable cause requirement would be “unlikely to frustrate the state’s attempts to investigate child abuse.” Id. at 976. In the case he decided, however, probable cause with regard to seizure of the child and probable cause as to the identity of the alleged abuser were co-extensive. It is not clear to this court that a probable cause requirement, that is, a requirement of probable cause both with regard to the parents’ (or other custodial persons’) involvement and to the existence of injuries constituting a child abuse emergency, would not, contrary to Judge Hurley’s observation, at times, “frustrate the state’s attempts to investigate child abuse.” In the van Emrik case, as in the case before the court, where the fact of the abuse was known, but it was not possible to eliminate a parent or parents from suspicion, the evidence specifically impheating an individual parent may not have risen to the level of probable cause. When the original report of abuse comes from a hospital setting it is not unlikely that the hospital or child protective agency will initially lack information sufficient to establish probable cause against any one individual. The need to protect an abused child may require restriction of parental custody temporarily, while an investigation is conducted and, even thereafter, if its findings are unable to eliminate parents (or other custodial persons) from suspicion. Despite plaintiffs’ attempt to equate seizure of a child in child abuse proceedings to criminal arrest, with the concomitant obligation to establish probable cause within the parameters required for arrests with regard to the restrictions placed on the parents, this position simply does not find support in the ease law. Pltf.Brf. dated November 19, 1993 at 51. Family Court proceedings are “civil in nature and a finding of abuse or neglect need only be supported by a preponderance of the evidence.” In the Matter of Nicole V., 71 N.Y.2d 112, 117, 524 N.Y.S.2d 19, 518 N.E.2d 914 (1987). Although in Nicole V., the New York State Court of Appeals was referring specifically to sexual abuse of children in its discussion of policy, it would appear even more applicable to WSIS which generally involves babies incapable of testifying: “Such abuse is difficult to detect because the acts are predominantly nonviolent and usually occur in secret rendering the child the only witness. Moreover, once abuse is uncovered it is difficult to fix blame, not only because of the lack of evidence but also because of the reluctance or inability of victims to testify.” Id. New York State has, by statute, established a res ipsa loquitur approach to certain types of child abuse, denominating certain types of injuries as prima facie evidence of abuse or neglect. Under N.Y.Jud.L. (Family Court Act) § 1046(a)(ii): [Pjroof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent or other person legally responsible. Whiplash shaken baby syndrome (WSIS) has been held to be such an injury, constituting prima facie evidence of abuse. In In re Antoine J., 185 A.D.2d 925, 587 N.Y.S.2d 13 (2d Dep’t 1992), the Second Department held that proof of WSIS was sufficient to establish that an infant had been abused. “[I]n view of the failure of the mother to offer any reasonable explanation for the physical injuries of [the infant and his brother] we are satisfied that findings of abuse and neglect were established upon a preponderance of credible evidence.” Id. In an earlier WSIS case, In re Lou R., 131 Misc.2d 138, 143, 499 N.Y.S.2d 846 (Family Court, Onondaga County 1986), the court held: “Common experience adds that a six-month-old infant could not have shaken himself to such a degree. No credible evidence was offered by the parents to support any other satisfactory explanation of the child’s condition.” Interestingly, the expert testimony in Lou R. provided a far wider time frame for the damage to the child to become manifest after the shaking occurred than was eventually asserted in this ease. The child’s symptoms in Lou R. were apparently similar to those suffered by James Dietz, “retinal hemorrhage, as well as presence of unexplained blood in the cranial cavity, without any evidence of any trauma or blow to the child ... and unexplained blood in the spinal fluid,” although the consequences were different, breathing difficulties and seizures in Lou R., blindness for James Dietz. “Assuming an infant to have been shaken severely enough to cause the signs initially noted in this case, the unrebutted testimony was that these signs might present themselves at any time from within several hours of the incident to four-five days later, but would probably be manifest within two or three days of such shaking.” Id. at 141, 499 N.Y.S.2d 846. As in van Emrik, plaintiffs have provided no evidence that disproves the objectively reasonable nature of the limitations defendants placed on Mr. and Mrs. Dietz’ custody of their son. It was objectively reasonable, both, for the City defendants, on December 22, 1988, to place a hold on James’ discharge from the hospital, and, on December 23, 1988, to condition his release on the Salmos’ custody and supervision of Mr. and Mrs. Dietz’ contact. Moreover, accepting, as the court must for purposes of evaluating a motion for summary judgment, the plaintiffs’ assertion that they consented to James’ discharge to the Salmos only under duress, because their alternatives were limited custody or none at all, does not alter this conclusion because total denial of custody was warranted under the circumstances known to CWA on December 23, 1988. Thus, summary judgment on plaintiffs’ claim of a violation of the Fourth Amendment in CWA’s “seizure” of James, part of their first cause of action, is warranted, first to City individual defendants in their individual capacities on the basis of qualified immunity, because each had an objective, reasonable belief that an emergency situation existed. Second, summary judgment relating to the seizure portion of the plaintiffs’ first cause of action is also warranted to all City defendants in all capacities because it is well-established that a seizure made without a hearing under the reasonable belief of a child abuse emergency does not violate plaintiffs’ constitutional rights. 2. The Delay in Providing an Adversarial Hearing Did Not Deny Mr. and Mrs. Dietz Due Process. (1) Having found that there are no material facts in dispute regarding nature of CWA’s actions, under an emergency situation, in its initial assertion of control of James’ custody on December 22 and 23,1988, it is still possible that CWA’s delay in providing a hearing until January 3, 1989 was a denial of Constitutionally guaranteed procedural due process to Mr. and Mrs. Dietz and to James. The delay in providing a hearing from Thursday, December 22, 1988, the date CWA received notice of abuse and thus the earliest date that CWA could have brought a proceeding, to Tuesday, January 3, 1989, was twelve calendar days. Family Court was in session on only six of these twelve days because of the two holidays, Christmas and New Years Day. This period certainly exceeded the forty-eight hours that would be permitted in criminal arrest processing. As noted, supra p. 444, the Second Circuit held, in Robison v. Via, that there was no denial of due process guarantees when, in emergency circumstances, the state assumed by temporary custody without a court order. 821 F.2d 913, 921 (2d Cir.1987) (citing Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.1977)). The Duchesne court also held: “However, in those ‘extraordinary situations’ where deprivation of a protected interest is permitted without prior process, the constitutional requirements of notice and an opportunity to be heard are not eliminated, but merely postponed.” Id. The court found that due process had been violated in Duchesne where the City postponed a hearing for thirty-six months. In Cecere v. City of New York, 967 F.2d 826 (2d Cir.1992), the Court held that an assertion of custody that lasted at most four days, although it effectuated complete denial of contact, as well as custody, to the mother, “was permissible because an emergency situation existed, but that the defendants were required to seek judicial ratification before asserting permanent custody.” Id. at 830. There, the court further explained its earlier ruling in Duchesne: “The facts of the instant case thus fall within Duchesne’s explicit recognition that temporary assertions of custodial authority in the face of a reasonably perceived emergency do not violate due process.” Id. In van Emrik, an eight-day delay in providing an adversarial hearing, during six days of which court was in session, was held not to deny due process. The child was initially placed in foster care but was then transferred back to the hospital, with a hold on discharge without the county’s consent. After an eight day investigation, “which ended without any finding of responsibility for the injury,” the child was released to her parents (apparently without a further hearing). Section 1011 of the New York Family Court Act states that the obligation of that court in child protective proceedings is “to help protect children from injury or mistreatment and to held safeguard their physical, mental, and emotional well-being.” For that reason, New York courts, for example, have refused to inject an exclusionary rule into Family Court child abuse proceedings. See In re Anne “BB”, 202 A.D.2d 806, 807-08, 609 N.Y.S.2d 111 (3d Dep’t 1994): “Our courts should never lose sight of the State’s interest as parens patriae in protecting the well-being of children, and the overwhelming interest in the safety of children far outweighs any deterrent value of an exclusionary rule----” Protection of children, the objective of state law, may, under compelling circumstances, override constitutionally guaranteed parental interests. Where a child abuse emergency exists, federal courts have repeatedly found that the child’s interest is sufficient to justify not only an initial seizure of the abused child but also some delay before providing a hearing to permit child protective workers to investigate the circumstances. Even though the interference with the child’s custody was total under emergency situations in Cecere and van Emrik, delays in those cases in providing an adversarial hearing to the parent(s) far in excess of the maximum of forty-eight hours permissible in criminal arrests were held compatible with constitutional due process by the Second Circuit. Other federal courts have approved even more extensive delays. Justified