FULTON et al v. CITY OF PHILADELPHIA et al

Filing 1

COMPLAINT against CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS ( Filing fee $ 400 receipt number 178509.), filed by TONI LYNN SIMMS-BUSCH, SHARONELL FULTON, CECELIA PAUL, CATHOLIC SOCIAL SERVICES. (Attachments: # 1 Case Management Track Form, # 2 Civil Cover Sheet, # 3 Designation Form, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(jwl, )

Exhibit E

Mr. Thomas Earle
Ms. Rue Landau
Philadelphia Commission on Human Relations
601 Walnut Street
Suite 300 South
Philadelphia, PA 19106
Via Email

Dear Mr. Earle and Ms. Landau,
I am President of the Becket Fund for Religious Liberty, and I represent Catholic
Social Services for the Archdiocese of Philadelphia in this matter. Becket is the
nation’s leading law firm dedicated to protecting religious freedom. Our lawyers
have a remarkable track record, including five Supreme Court victories in the last
six years. Those cases include rulings protecting a Muslim prison inmate who was
forbidden to grow a beard, Massachusetts sidewalk counselors restricted in their
free speech near abortion clinics, the Little Sisters of the Poor in their challenge to
the contraceptive mandate, and a Lutheran church sued for allegedly violating antidiscrimination law.1 These decisions were unanimous. Most recently, we succeeded
in forcing the Trump administration to change its discriminatory disaster relief
policy after litigation on behalf of churches and synagogues damaged by
hurricanes.2
I am writing in response to your March 16, 2018 letter concerning the foster care
services provided by Catholic Social Services to the City of Philadelphia (“the City”).
Your letter comes on the heels of the City’s decision to suspend referrals of future
foster care intakes to Catholic Social Services, a decision that is both harmful to
children and families and an illegal breach of contract. While my clients are
somewhat puzzled by the Commission’s involvement in the matter and reserve the
right to challenge its jurisdiction, they welcome this opportunity to better
understand the City’s goals and resolve this issue amicably so that we can continue
serving children in need.
Holt v. Hobbs, 135 S.Ct. 853 (2015) (9-0); McCullen v. Coakley, 134 S. Ct. 2518 (2014) (9-0); Zubik v.
Burwell, 136 S.Ct. 1557 (2016) (9-0); Hosanna-Tabor Evangelical Lutheran Church and School v.
EEOC, 565 U.S. 171 (2012) (9-0); see also Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014) (5-4).
2 See Letter of Solicitor General to Clerk of the Supreme Court (Jan. 3, 2018), available at
https://s3.amazonaws.com/becketnewsite/17A649-Harvest-Family-Church-letter.pdf.
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April 18, 2018
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The Shortage of Families
As I’m sure you know, the City is facing an acute need for more foster families to
provide homes for at-risk children. Just last month, the City sent out an “urgent”
call that 300 additional families are needed for fostering,3 and other organizations
have recognized that the City faces a “crisis” because of “the lack of qualified foster
parents and other placement options for the increasing number of children in care.”4
Approximately 13,000–15,000 PA children are currently in foster care and part of
Pennsylvania’s child welfare system,5 and over 5,000 of those children are in
Philadelphia’s foster care system alone.
That is why the City relies on private agencies to help fill this shortage. In
Philadelphia, there are 28 agencies who partner with the city to provide foster
services.6 Of those agencies, eight obtained additional competitive contracts with
the City to also serve as a Community Umbrella Agency (CUA), an entity that
works to try to help at-risk children stay in their homes where such an option would
be possible and safe for the child. If that option is not available, the CUA refers the
child to be placed in foster care. Agencies place children with foster families who
have already undergone extensive interviews and home studies by social workers.
The social workers make a recommendation that a particular foster family would be
an appropriate family to care for foster children.7 The culmination of these
interviews, home studies, and recommendations includes agency certification that a
Julia Terruso, Philly puts out ‘urgent’ call – 300 families needed for fostering, Philadelphia Inquirer,
March 18, 2018, http://www.philly.com/philly/news/foster-parents-dhs-philly-child-welfare-adoptions20180308.html.
4 David R. Fair, Partners for Philadelphia Families Testimony to Philadelphia City Council, Turning
Points for Children, (June 15, 2016), www.turningpointsforchildren.org/news/228-partners-forphiladelphia-families-testimony
5 Pennsylvania State Resource Family Association, Being A Foster Parent: The Facts,
https://www.psrfa.org/being-a-foster-parent/the-facts/ (last accessed April 4, 2018); in 2017, there
were over 25,000 youth statewide who were at some point in Pennsylvania’s out of home placement
program. Pennsylvania Partnerships for Children, 2018 State of Child Welfare,
http://www.papartnerships.org/socw2018 (last accessed April 4, 2018); Pennsylvania Partnerships for
Children, 2018 State of Child Welfare Data Sheets, http://www.papartnerships.org/reports/
2018_socw/source_files/Pennsylvania%202018%20SOCW.pdf (last accessed April 4, 2018).
6 City of Philadelphia, Department of Human Services, Foster Care Licensing Agencies (contracted by
Philadelphia DHS), https://beta.phila.gov/media/20180402133414/DHS_Philadelphia_Foster_Care_
Agencies_32818.pdf (last accessed April 4, 2018).
7 Pa. Code § 3700.64, https://www.pacode.com/secure/data/055/chapter3700/s3700.64.html.
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foster family is approved to care for foster children.8 The City provides per diem
payments only after an agency has accepted the referral of a child and is
supervising that placement with an approved foster family.
A foster agency provides ongoing training and support and works with the assigned
CUA case manager to coordinate services to the foster family, birth family and child
in order to achieve a positive outcome. Foster parents are needed not only to care for
children, but to provide mentoring to the birth family and support the relationship
between the child and the birth family. This collaborative approach assesses the
continued appropriateness of temporary placement and explores options for
permanency through return to the birth family, placement with kin, or adoption.
A Dedication to Children
Catholic Social Services shares the City’s goal of working to fill the shortage of safe
homes for these vulnerable kids. Today, permanency is Catholic Social Services’
number one priority, aimed at preventing children from languishing too long in
uncertainty. Catholic Social Services, foster care department prioritizes
permanency, and the statistics demonstrate its success—about 50 children per year
either return to their families or move to adoption with their foster families.9
Catholic Social Services’ Youth Division, including St. Gabriel’s System and St.
Francis & St Vincent Homes, serves 1,544 youth in placement, and approximately
1,400 families per year across all of its child welfare and juvenile justice programs.
As one of those programs, Catholic Social Services Foster Care currently cares for
127 children daily whom it has currently placed in foster arrangements through
referrals from the City.
Catholic Social Services also provides important ancillary services to children and
families. For example, Catholic Social Services, St. Gabriel’s System, is certified as
a Sanctuary Model of Trauma-Informed Care provider—a best practice standard
now hailed nationwide. Catholic Social Services also provides educational
programming via state-licensed schools at St.Gabriel’s Hall, DeLaSalle Vocational

Pa. Code §§ 3700.61, 3700.69, https://www.pacode.com/secure/data/055/chapter3700/s3700.69.html.
City of Philadelphia, Department of Human Services, Resource Parent Handbook: A Guide for
Foster and Kinship Caregivers, 11 (Sept. 26, 2017), https://beta.phila.gov/media/20170926145732/
DHS-Resource-Handbook-FINAL-VERSION-small.pdf (discussing the importance of permanency for
children).
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School and St. Francis Homes. Last year, through Catholic Social Services
programs, 132 graduates received high school diplomas.
Catholic Social Services’ Religious Mission and Practices
Catholic Social Services exists to transform lives and bring about a just and
compassionate society where every individual is valued, families are healthy and
strong, and communities are united in their commitment to the good of all. Catholic
Social Services works towards a world touched by God’s mercy: where poverty and
need are alleviated and all people share justly in the blessings of creation. Catholic
Social Services is dedicated to serving others in a spirit of humility and genuine
concern for the well-being of its neighbors and affirms the God-given dignity and
worth of every person.
The religious mission of Catholic Social Services is rooted historically in its foster
work. In 1916, the Catholic Children’s Bureau was established and staffed by
Missionary Sisters of the Blessed Trinity, early Catholic pioneers in social work.
Their work continues today through the dedicated efforts of the foster care program.
This ongoing religious mission motivates the staff of Catholic Social Services to
provide exemplary services to children and families in Philadelphia.
Catholic Social Services serves and places children regardless of their race, color,
sex, sexual orientation, gender identity, religion, national origin, ancestry, age,
disability, source of income, familial status, genetic information, or sexual violence
victim status. Catholic Social Services would never stop a family who wants to
foster from having the opportunity to complete the application and home study
process, either through Catholic Social Services or another agency. If Catholic Social
Services is unable to perform in-depth home assessments and make
recommendations to the state for any reason, including consistency with its
religious mission, then Catholic Social Services will refer the potential foster parent
to one of 28 nearby agencies who can better serve their needs. Four agencies are
located within just two miles of Catholic Social Services’ downtown office.
No same-sex couples have been denied the ability to become foster parents because
of Catholic Social Services, and no same-sex couples have filed complaints against
Catholic Social Services regarding its provision of services.

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The City’s Unlawful Suspension of Catholic Social Services’ Contract
As the Commission is aware, on March 15, 2018, the City announced that it was
suspending referral of future foster care intakes to Catholic Social Services.
Philadelphia Councilwoman Cindy Bass introduced a resolution March 15
authorizing “the Committee on Public Health and Human Services to investigate
Department of Human Services’ policies on contracting with social services agencies
that either discriminate against prospective LGBTQ foster parents or allow nonLGBTQ foster parents to discriminate.” On March 27, 2018, Staci Boyd, the
Operations Director at the Department of Human Services, sent an email to other
foster agencies in Philadelphia forbidding them from referring any additional foster
intakes to Catholic Social Services.
The City’s suspension of Catholic Social Services’ contract is unjustified and
unlawful for at least four reasons.
First, Catholic Social Services’ foster services do not constitute a “public
accommodation” under the City’s Fair Practices Ordinance, and therefore it is not
bound by that ordinance, nor subject to penalties or investigations pursuant to that
ordinance, nor can it have violated the contract provision relating to that ordinance.
Catholic Social Services does not offer, sell, or make available its services to the
public that entail supervision of a child placed with an approved foster family.
Phila., Pa., Admin. Code § 9-1102(1)(w). These services are only available to at-risk
children who have been removed by the state and are in need of a loving home, and
Catholic Social Services serves any child who is referred to them. The City only pays
Catholic Social Services a per diem for these supervisory services, and the City is
not contracted to compensate Catholic Social Services for anything else related to
the provision of foster care.
Furthermore, the Pennsylvania Supreme Court has declined to treat a Catholic
religious entity as a public accommodation because of its private, religious
character. See Roman Catholic Archdiocese of Philadelphia v. Com., Pennsylvania
Human Relations Comm’n, 119 Pa. Cmwlth. 445 (1988).
Second, even if Catholic Social Services’ foster services did constitute a public
accommodation, no “unlawful public accommodation practice” has occurred. No
individual or couple has alleged that Catholic Social Services has “den[ied] or
interfere[d] with the public accommodations opportunities of an individual.” Nor

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could they, because no allegation has been made that Catholic Social Services
prevented anyone from receiving relevant city services, nor has Catholic Social
Services prevented any child from being placed in a family. Courts have denied
similar meritless public accommodation claims when there was not a clear
allegation that an individual was actually denied services. See, e.g., Abdul-Latif v.
Cty. of Lancaster, 990 F. Supp. 2d 517, 533 (E.D. Pa. 2014) (dismissing public
accommodation claim because plaintiff had not tried to access the services).
Third, the City’s contract with Catholic Social Services states under the relevant
nondiscrimination Paragraph 15.1 that the City may “suspend or terminate” its
contract with Catholic Social Services only “[i]n the event of any breach of this
Section 15.1.” The City has not set forth any clear basis for breach of contract prior
to engaging in suspending additional referrals. Nor has it provided the notice
required under the contract prior to exercising its remedies. See Section 12.2. As
such, the City is in breach of its contract with Catholic Social Services by failing to
perform and for preventing Catholic Social Services from continuing to perform
without any justification.
Many state and federal courts have held that a government entity breached its
contract with a private party and was subject to damages or injunctive relief when
it terminated its agreement or prevented performance of a contract without being
clearly “justified under state law.”10 Here, if the City continues to suspend referrals
and impede Catholic Social Services’ ability to perform under its contract without
clear justification, the City will likewise be subject to claims for injunctive relief or
monetary damages.
This breach has real-world consequences. After the City informed Catholic Social
Services that it would not receive any new referrals, Catholic Social Services
received a request regarding a child who had just been taken into foster care. The
agency wished to place that child with his siblings, who had been placed with a
family through Catholic Social Services. Responding to an urgent need, Catholic
Social Services placed the child with his siblings that afternoon, and informed DHS

N. Penna. Legal Servs., Inc. v. Lackawanna Cty., 513 F. Supp. 678 (M.D. Pa. 1981); see also, e.g.,
Com., Dep't of Transp. v. Brozzetti, 684 A.2d 658, 665 (Pa. Commw. Ct. 1996) (government breached
contract when it failed to justify its termination for convenience).
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of the placement. That placement was made in accordance with best practices and
law, which favor family placement of siblings wherever possible.11 After that
placement was made, DHS sent a message to its referral partners regarding
Catholic Social Services and Bethany Christian Services, stating that “NO referrals
are sent to these two providers effective immediately,” and demanding that all its
partners affirm this directive in writing.
If a similar situation happens in the future, it appears that DHS is willing to violate
its own best practices guidelines and ignore the best interests of children. Surely
the City does not actually believe it would be better if Catholic Social Services had
not been willing and able to place the child with his siblings.
Fourth, the City has been engaging in blatant unconstitutional targeting of
organizations based on their religious beliefs. Despite receiving no complaints from
families about the practices of Catholic Social Services, the City suspended
continued foster referrals. The City cannot simply lump all religious organizations
into a category of groups with beliefs the City does not agree with and punitively
banish them from public service as a result. Nor can it lawfully punish Catholic
Social Services for operating according to its religious beliefs—particularly in a way
that has worked well, without complaint, for decades.
Moving Forward
Because the City has not articulated any clear breach of contract justifying a
suspension of foster referrals, and because I trust the City does not wish to continue
violating Catholic Social Services’ rights under federal, state, and City law, I am
confident that the City will quickly resume normal services and operations with
Catholic Social Services to avoid mounting claims for injunctive relief and monetary
damages.
In the alternative, I assume that the City will immediately provide a clear legal
basis for its allegations that Catholic Social Services is in breach of its contract.
Such allegations would, of course, need to explain what the City would require of
City of Philadelphia, Department of Human Services, Resource Parent Handbook: A Guide for
Foster and Kinship Caregivers, 7 (Sept. 26, 2017) (“[I]t is DHS policy to keep siblings—brothers and
sisters—together whenever possible in the same home unless there is a very strong reason for their
separation.”).
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Catholic Social Services to come into compliance. For example, is the City requiring
Catholic Social Services to promise that it will engage in detailed home assessments
and make written endorsements and recommendations to the City that run
contrary to Catholic Social Services’ religious beliefs regarding marriage? We would
need to understand exactly what tasks the City is demanding that Catholic Social
Services do, and exactly what outcomes are expected, before we could evaluate the
City’s position.
I look forward to your response and a prompt resolution of this matter so that we
can all continue our work of serving the City’s most vulnerable children. These
children need and deserve help, and Catholic Social Services remains eager to
provide it.

Sincerely,

Mark Rienzi
President
The Becket Fund for Religious Liberty