19-3240

Smith v. Tkach

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 

32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE 

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE 

A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 10th day of February, two thousand twenty-one.

PRESENT:

DENNIS JACOBS,

RICHARD J. SULLIVAN,

STEVEN J. MENASHI,

Circuit Judges.

_____________________________________

TIMOTHY SMITH,

Plaintiff-Appellant,

v. 19-3240

JOHN TKACH, TICIA EAVES, TRACI 

ZIEGENHAGEN, KATRINA TOKOS, 

JULIA HEPWORTH, JESSICA LAYMAN, 

SUSAN PATTERSON, MARISSA CARTER, 

KATHLEEN SANTONI, JOHN 

CHOYNOWSKI, JON PETERSON, 

BERKSHIRE FARM CENTER,
2

Defendants-Appellees.*

_____________________________________

FOR PLAINTIFF-APPELLANT: Timothy Smith, pro se, Conklin, NY.

FOR DEFENDANTS-APPELLEES: Patrick J. Fitzgerald, Girvin & 

Ferlazzo, P.C., Albany, NY, for Ticia 

Eaves and Berkshire Farm Center;

Robert G. Behnke, Broome County 

Attorney, Binghamton, NY, for John 

Tkach, Traci Ziegenhagen, Katrina 

Tokos, Julia Hepworth, Jessica 

Layman, Susan Patterson, Marissa 

Carter, Kathleen Santoni, John 

Choynowski, and Jon Peterson.

Appeal from a judgment of the United States District Court for the Northern

District of New York (Glenn T. Suddaby, Chief Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is AFFIRMED. 

Appellant Timothy Smith, proceeding pro se, sued employees of the Broome 

County Department of Social Services (“DSS”) and Berkshire Farm Center (“BFC”) under 

42 U.S.C. § 1983, alleging that the defendants violated his Fourth and Fourteenth 

Amendment rights by seizing his children and placing them in foster care and by 

permitting his children to be abused while in foster care. The district court granted 

* The Clerk of Court is respectfully directed to amend the caption as set forth above. 
3

summary judgment to the defendants, reasoning that Smith failed to offer sufficient 

evidence to establish his claims. We assume the parties’ familiarity with the underlying 

facts, the procedural history of the case, and the issues on appeal.

We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and 

draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 

F.3d 120, 126–27 (2d Cir. 2013). “Summary judgment is proper only when, construing 

the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.’” 

Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). 

The district court properly granted summary judgment to the defendants with 

respect to Smith’s Fourth and Fourteenth Amendment claims based on his children’s 

placement and alleged abuse in foster care. Smith lacks standing to assert a Fourth 

Amendment claim based on the seizure of his children because his personal rights were 

not violated. See Southerland v. City of New York, 680 F.3d 127, 143 (2d Cir. 2012) 

(explaining that “[a] Fourth Amendment child-seizure claim belongs only to the child, 

not to the parent”). For the same reason, Smith lacks standing to assert a Fourth 

Amendment claim based on the abuse of his children while in foster care.

Even if we were to construe Smith’s claim as being asserted on behalf of his 

children, see id., Smith failed to offer any evidence that his children were seized
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unlawfully. To establish that a seizure violated the Fourth Amendment, a plaintiff must 

show that the seizure was unreasonable – i.e., that it was not supported by probable cause. 

See Tenenbaum v. Williams, 193 F.3d 581, 602 (2d Cir. 1999). The “issuance of a warrant 

by a neutral magistrate . . . creates a presumption . . . [for] officers to believe that there 

was probable cause” for an arrest or seizure. Golino v. City of New Haven, 950 F.2d 864,

870 (2d Cir. 1991). We have previously held that “a court order is the equivalent of a 

warrant” in the context of a child being seized by the state during a child abuse 

investigation. Tenenbaum, 193 F.3d at 602. Here, Smith’s children were placed in foster 

care pursuant to a family court order. Therefore, there is a presumption that Smith’s 

children’s placement was supported by probable cause. Given that Smith admitted to 

slashing the tires of a car in front of his children (the incident that gave rise to a neglect 

petition) and that the family court found that the allegations in DSS’s neglect petition 

were supported by evidence, Smith failed to rebut the presumption that there was 

probable cause to place his children in foster care. See Golino, 950 F.2d at 870 (explaining

that to show that a warrant was issued without probable cause, “the plaintiff must make 

a substantial preliminary showing that the affiant knowingly and intentionally, or with 

reckless disregard for the truth, made a false statement in his affidavit and that the 

allegedly false statement was necessary to the finding of probable cause” (internal 

quotation marks omitted)). 
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Smith also failed to offer sufficient evidence to establish a violation of his 

children’s substantive due process rights. Foster care and social services agencies may 

be held liable for violations of substantive due process rights based on their failure to 

prevent the abuse or neglect of children in their care. See Phifer v. City of New York, 289 

F.3d 49, 61–62 (2d Cir. 2002); Doe v. N.Y.C. Dep’t of Soc. Servs., 649 F.2d 134, 141 (2d Cir. 

1981). When asserting a due process claim based on a state actor’s failure to fulfill an 

affirmative duty – in this case, the duty to prevent abuse of foster children – a plaintiff 

must show that the defendant’s omissions were “a substantial factor” contributing to the 

denial of the constitutional liberty interest and that the defendant was deliberately 

indifferent to the abuse. N.Y.C. Dep’t of Soc. Servs., 649 F.2d at 141. With respect to 

deliberate indifference, the evidence must show “a pattern of omissions revealing 

deliberate inattention to specific duties imposed for the purpose of safeguarding [the 

children] from abuse,” which would allow for an inference that there was “deliberate 

unconcern for [the children’s] welfare.” Id. at 145. 

The evidence in the record does not reflect a pattern of omissions, let alone 

omissions that were a substantial factor in allowing abuse to occur. Smith stated that he 

observed various minor injuries on his children and that his eldest child reported being 

sexually abused in December 2017 by another child in his foster home. But these 

statements do not demonstrate the existence of a pattern that the defendants should have 
6

investigated to prevent further (or more serious) abuse. A BFC caseworker, Ticia Eaves,

determined that the minor injuries resulted from accidents. Smith did not offer any 

evidence to dispute Eaves’s explanations of the injuries aside from his suspicions, which 

are insufficient to create a genuine dispute of fact. See Scotto v. Almenas, 143 F.3d 105, 

114 (2d Cir. 1998) (“The non-moving party may not rely on conclusory allegations or 

unsubstantiated speculation.”). Further, any injuries that occurred to the younger 

children would not have created a pattern of abuse that would have alerted the 

defendants to the possibility that the eldest child was being sexually abused; the record 

reflects that the children were not even in the same foster home. Once the child reported 

the abuse, he was removed from the foster home into a new placement and given a 

psychological evaluation and counseling. Thus, Smith has not offered sufficient 

evidence to establish a substantive due process claim based on the alleged abuse his 

children experienced in their foster homes.

We have considered all of Smith’s remaining arguments and find them to be 

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court