DENNIS v. DEJONG et al

Filing 151

OPINION. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 6/14/2013. 6/14/2013 ENTERED AND COPIES E-MAILED.(lbs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
REGINALD DENNIS,
RENEE DENNIS and
B.D., a minor,

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs
vs.
ALLAN R. DEJONG, M.D.;
COUNTY OF DELAWARE;
MARY GERMOND;
META WERTZ;
BETH PRODOEHL;
PATRICIA MCGETTIGAN;
GINA GIANCRISTIFORO; and
DR. DOE,
Defendants
*

*

Civil Action
No. 10-cv-06789

*

APPEARANCES:
MARK D. FREEMAN, ESQUIRE
On behalf of Plaintiffs
SARA PETROSKY, ESQUIRE
On behalf of Defendants Allan R. DeJong, M.D.
SUZANNE MCDONOUGH, ESQUIRE
On behalf of Defendants County of Delaware, Mary
Germond, Meta Wertz, Beth Prodoehl, Patricia
McGettigan and Gina Giancristiforo
*

*

*

O P I N I O N
JAMES KNOLL GARDNER,
United States District Judge
This matter is before the court on three motions for
summary judgment.

On December 16, 2012 plaintiffs filed their Notice of
Motion, seeking partial summary judgment.

On December 17, 2012

Defendants County of Delaware, Mary Germond, Meta Wertz, Beth
Prodoehl, Patricia McGettigan and Gina Giancristiforo’s Motion
for Summary Judgment was filed.1

Also on December 17, 2012 the

Motion of Defendant, Allan R. Dejong, M.D., to Dismiss
Plaintiffs’ Amended Complaint Pursuant to Federal Rule of Civil
Procedure 56 with Supporting Memorandum, in the nature of a
motion for summary judgment, was filed.
SUMMARY OF DECISION
With plaintiffs’ consent, Counts I, VI and VII against
defendant County of Delaware, and Count IX against defendant
Dr. Doe, are dismissed from plaintiffs’ Amended Complaint, with
prejudice.
For the following reasons, I grant the motion for
summary judgment of the Delaware County defendants and the motion
for summary judgment of Dr. DeJong, concerning the remaining
Counts in plaintiffs’ Amended Complaint: Counts II-A, II-B, III,
IV, V, VII (against defendant Dr. DeJong), VIII and X.

In

addition, I deny plaintiffs’ motion for partial summary judgment.
Specifically, I conclude that in each of the counts
asserted against the Delaware County defendants, plaintiffs have
failed to establish that Delaware County violated plaintiffs’
1

I refer to this group of defendants collectively as the “Delaware
County defendants”.

-2-

substantive or procedural due process rights pursuant to an
official custom or policy.

Moreover, I conclude that plaintiffs’

claims against the individual Delaware County defendants are
barred by absolute or qualified immunity.
Furthermore, I conclude that defendant DeJong is
entitled to summary judgment because plaintiffs have failed to
establish that Dr. DeJong acted under the color of state law as
required to pursue a claim pursuant to 42 U.S.C. § 1983.
Moreover, plaintiffs have failed to establish that Dr. DeJong
conducted himself in a manner that was extreme and outrageous or
shocked the conscience.
Accordingly, plaintiffs’ cross-motion for partial
summary judgment is denied.
JURISDICTION
Jurisdiction in this case is based on federal question
jurisdiction pursuant to 28 U.S.C. § 1331.

This court has

supplemental jurisdiction over plaintiffs’ pendent state-law
claims.

See 28 U.S.C. § 1367.
VENUE
Venue is proper pursuant to 28 U.S.C. § 1391(b) because

the events giving rise to plaintiff’s claims allegedly occurred
within Delaware County, Pennsylvania, which is located within
this judicial district.

-3-

PROCEDURAL HISTORY
This case arises out of a child abuse investigation
which resulted in plaintiffs Reginald and Renee Dennis
temporarily losing custody of their infant son, B.D.

Mr. Dennis

was separated from his son for over one year, and Mrs. Dennis was
separated from her son for nine months.
On November 19, 2010 plaintiffs filed their initial
Complaint, which asserted 19 Counts against sixteen defendants2
Fifteen of those defendants formed five groups of defendants, and
each group filed a motion to dismiss.

The sixteenth defendant,

whose name is unknown and who is identified as “Dr. Doe”, did not
file a motion to dismiss the Complaint.
By Order and Opinion dated and filed September 30, 2011
the motion to dismiss filed by the Delaware County defendants was
granted in part and denied in part.
dismiss were granted.

The other four motions to

Pursuant to the September 30, 2011

Opinion, certain counts were dismissed with prejudice, and
certain counts were dismissed without prejudice for plaintiff to
file a more specific amended complaint.3

2
The defendants in the initial Complaint were Allan R. DeJong,
M.D.; Nemours Foundation; Mary Germond; Meta Wertz; Beth Prodoehl; Patricia
McGettigan; Gina Giancristiforo; Edward Speedling; Cindy W. Christian, M.D.;
Pennsylvania State University Hershey Medical School; Daniell B. Boal, M.D.;
Kathleen D. Eggli, M.D.; G. Michael Green; Michael R. Galantino; Dr. Doe; and
the County of Delaware.
3

See September 30, 2011 Order

-4-

As a result of the September 30, 2011 Order and
Opinion, the following claims remained in plaintiffs’ original
Complaint and were permitted to be included in the amended
complaint without change as authorized by the September 30, 2011
Order and Opinion:
Count II: plaintiffs’ Fourteenth Amendment
substantive and procedural due process claims
against defendant Delaware County;
Count III: plaintiffs’ Fourteenth Amendment
procedural due process claim against defendants
Germond and Delaware County;
Count IV: plaintiffs’ Fourteenth Amendment
procedural due process claim against defendant
McGettigan; and
Count V: plaintiffs’ Fourteenth Amendment
substantive due process claim against defendant
Delaware County.
The following claims were dismissed from plaintiffs’
original Complaint without prejudice for plaintiffs to file an
amended complaint in accordance with the September 30, 2011 Order
and Opinion:
Count I: plaintiffs’ Fourteenth Amendment
substantive and procedural due process claims
against defendant Delaware County for deputizing
an employee of Delaware County Children and Youth
Services to act as a deputy clerk of court for all
dependency matters in place of the county’s Office
of Judicial Support;
Count II: plaintiffs’ Fourteenth Amendment
substantive and procedural due process claims
against CYS employees, defendants Wertz,
McGettigan, and Giancristiforo, for an alleged

-5-

delay in filing an ex parte memorandum with the
court concerning termination of plaintiff parents’
parental rights;
Count IV: plaintiffs’ Fourteenth Amendment
procedural due process claim against defendant
Delaware County for the alleged policy of delaying
the scheduling of dependency hearings;
Count VI: plaintiffs’ Fourteenth Amendment
substantive due process claim against defendant
Delaware County for CYS’s reliance on defendant
Dr. DeJong’s investigations, reports and
testimony;
Count VII: plaintiffs’ Fourteenth Amendment
substantive due process claim against defendant
Dr. DeJong for multiple misrepresentations of
medical findings to support false accusations of
child abuse and related actions;
Count VIII: plaintiffs’ claims pursuant to
42 U.S.C. §§ 1981, 1983, 1985 against defendants
Dr. DeJong, Wertz, McGettigan and Speedling for
conspiring to deprive plaintiffs of their equal
protection and due process rights based on gender
bias and racial animus in their entirety;
Count IX: plaintiffs’ Fourteenth Amendment
procedural due process claim against defendants
Dr. DeJong, Germond, Wertz, McGettigan,
Giancristiforo, and Delaware County for adopting
the medical presumption that a subdural hematoma
is caused by abuse as a legal presumption in
dependency and criminal cases;
Count X: plaintiffs’ Fourteenth Amendment
substantive and procedural due process claims
against defendant Delaware County for failing to
properly train CYS workers, supervisors and
administrators about dependency proceedings;
Count XI: plaintiffs’ claims pursuant to 42 U.S.C.
§§ 1981 and 1985 against defendants Dr. DeJong,
Dr. Christian, Dr. Boal and Deputy District
Attorney Galantino for conspiring to misrepresent

-6-

medical evidence concerning the age of B.D.’s
subdural hematoma to deprive Mr. Dennis of his
equal protection and due process rights;
Count XV: plaintiffs’ Pennsylvania state-law
negligence claim against defendant Dr. Doe in its
entirety; and
Count XIX: plaintiffs’ Pennsylvania state-law
claim against defendant Dr. DeJong for intentional
infliction of emotional distress.
On December 16, 2011 plaintiffs filed a 141-page
Amended Complaint.

Based upon its captions and subheadings, the

Amended Complaint asserts the following eleven counts against
eight defendants:4
Count I:

Fourteenth Amendment Substantive and
Procedural Due Process Claim Against
Delaware County
Delaware County’s Deputization of CYS to
Act as Clerk of Juvenile Court and
Failure to Properly Train the CYS
Employee Acting as Court Clerk Violates
Due Process and Resulted in the
Delegation of Ministerial Function of
Scheduling the First Day of Dependency
Trials to Fellow CYS Employee (¶¶ 109151)

Count II-A:

Fourteenth Amendment Substantive and
Procedural Due Process Claim Against
Delaware County
Delaware County’s Policy of Insisting on
Placement with Strangers When Parents
Maintain Their Innocence, Failure to
Timely Schedule Shelter Care Hearing and

4
The named defendants in the Amended Complaint are Allan R. DeJong,
M.D.; the Delaware County defendants (County of Delaware, Mary Germond, Meta
Wertz, Beth Prodoehl, Patricia McGettigan, and Gina Giancristiforo); and
Dr. Doe.

-7-

Misrepresenting Facts and Law to Obtain
Ex Parte Orders Finding that there are
No Family or Community Caregivers
Available to Care for the Child Violates
Due Process (¶¶ 152-214)
Count II-B:

Fourteenth Amendment Procedural and
Substantive Due Process Claims Against
Meta Wertz, Patricia McGettigan and Gina
Giancristiforo
Defendants Decision Not to Seek A PreDeprivation Hearing and Delay in Filing
Ex Parte Memorandum and Insistence on
Placement of B.D. with Strangers in
Foster Care when Reggie and Renee
Maintained Their Innocence Violates Due
Process (¶¶ 215-218)

Count III:

Fourteenth Amendment Procedural Due
Process Claim Against Delaware County
and Mary Germond
Policy of Excessive Delay in Filing
Dependency Petition Violates Due Process
(¶¶ 219-234)

Count IV:

Fourteenth Amendment Procedural Due
Process Claim Against Delaware County,
Patricia McGettigan and Gina Giancristiforo
Excessive Delay in Scheduling Dependency
Hearings and in Providing Discovery
Months After the Filing of Dependency
Petition Violates Due Process (¶¶ 235271)

Count V:

Fourteenth Amendment Substantive Due
Process Claim Against Delaware County
CYS’s Refusal to Allow More Time with
B.D. and Refusal to Place B.D. with
Renee Even After CYS’s Own Parent
Educator Reported Renee had “Top Notch”
Parenting Skills and CYS’ Own
Psychologist Reported that if Anything
Renee was “Overprotective” of B.D. was
-8-

Retaliation for Renee Maintaining
Innocence and Violates Due Process
(¶¶ 272-284)
Count VI:

Substantive Due Process Claim Against
Delaware County
Reliance on Dr. DeJong in the Face of
Dr. DeJong’s Long History of Biased and
Unreliable Investigations, Reports and
Testimony Violates Due Process (¶¶ 285348)

Count VII:

Substantive Due Process Claim Against
Delaware County and Dr. DeJong
Dr. DeJong’s Pattern of Mu[l]tiple
Reckless Misrepresentations of Medical
Findings to Support False Allegations of
Child Abuse is Not Objectively
Reasonable, Constitutes Bad Faith and
Shocks the Conscience and His Acts are
Fairly Attributable to Delaware County
(¶¶ 349-531)

Count VIII:

Failure to Train Under the Fourteenth
Amendment Against Delaware County
Defendants Denied Reggie, Renee and B.D.
of Due Process Under the Law by Failing
to Properly Train and Supervise Intake
Case Workers, Supervisors and
Administrators about Procedural Due
Process Regarding the Filing of
Dependency Petitions and Scheduling of
Dependency Trials, the Appropriate Use
of Ex Parte Communication with the
Court, the Duty of Candor to the Court
in Ex Parte Communications (¶¶ 532-549)

Count IX

State[-]Law Claim
Negligence Against Dr. Doe
Dr. Doe Negligently Evacuated the Wrong
Side of B.D.’s Head (¶¶ 550-567)

-9-

Count X:

State[-]Law Claim Against Dr. DeJong
Intentional Infliction of Emotional
Distress (¶¶ 568-578).

On January 4, 2012 the Delaware County defendants
answered plaintiffs’ Amended Complaint.5

On January 12, 2012

defendant DeJong answered the Amended Complaint.6
After conducting discovery, plaintiffs filed a motion
for partial summary judgment on December 16, 2012.

In their

motion, plaintiffs seek judgment on Counts II-A, II-B, III, IV, V
and VII.7
On December 17, 2012 the Delaware County defendants8
and defendant DeJong9 each filed a motion for summary judgment
seeking judgment on all claims asserted against them.
On December 27, 2012 the Delaware County defendants
responded in opposition to plaintiffs’ motion for partial summary
judgment.10

On January 9, 2013 defendant DeJong filed his

response in opposition to plaintiffs’ motion for partial summary

5

Document 63.

6

Document 64.

7
Although plaintiffs’ “Notice of Motion” indicates that plaintiffs
seek summary judgment on Counts II-A, II-B, III, IV and VII only, plaintiffs’
memorandum in support of their motion for partial summary judgment argues that
plaintiffs are entitled to summary judgment with respect to Count V as well.
8

Document 93.

9

Document 95.

10

Document 98.

-10-

judgment.11

Also on January 9, 2013 plaintiffs filed responses

in opposition to the Delaware County defendants’ summary judgment
motion12 and Dr. DeJong’s summary judgment motion.13
In plaintiffs’ response to the Delaware County
defendants’ motion for summary judgment, plaintiffs consent to
the dismissal of Counts I, VI and VII against the Delaware County
defendants.14

Additionally, at oral argument on April 18, 2013

plaintiffs’ consented to dismissal of Count IX, which asserts a
state-law negligence claim against Dr. Doe.15
On January 30, 2013 the Delaware County defendants
filed a reply brief in response to plaintiffs’ memorandum of law
in opposition to the Delaware County defendants’ motion for
summary judgment motion.16

11

Document 104.

12

Document 103.

13

Document 102.

14
See Plaintiffs’ Memorandum of Law in Opposition to Motion to
Dismiss of Defendants Delaware County, Mary Germond, Meta Wertz, Patricia
McGettigan, Gina Giancristiforo and Beth Prodoehl, which memorandum was filed
January 9, 2013 (Document 103), pages 4 and 29.

Plaintiffs do not consent to dismissal of Count VII as asserted
against defendant DeJong.
15

Transcript of Oral Argument Before the Honorable James Knoll
Gardner, April 18, 2013 (“N.T. Oral Argument” ), pages 158-159.
16

Document 108.

-11-

On April 18, 2013 I heard argument on the three within
motions for summary judgment and took the matter under
advisement.17

Hence this Opinion.
STANDARD OF REVIEW

Rule 56(a) of the Federal Rules of Civil Procedure
permits a party to seek summary judgment with respect to a claim
or defense, or part of a claim or defense.

Rule 56(a) provides,

in pertinent part, that “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”

Fed.R.Civ.P. 56(a); National Association for the

Advancement of Colored People "NAACP" v. North Hudson Regional
Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2012).
For a fact to be considered material, it “must have the
potential to alter the outcome of the case.” Id. (citing
Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)).
Disputes concerning facts which are irrelevant or unnecessary do
not preclude the district court from granting summary judgment.
Id.

17

On April 24, 2013 defendant DeJong filed a motion to supplement
the record with a Declaration of Randall Williams and a Medical Services
Agreement, and a Health Insurance Claim Form, which were attached to defendant
DeJong’s motion as Exhibits A and B. On April 30, 2013 plaintiffs filed a
response indicating that, subject to clarifications set forth in their
response and accompanying memorandum, they did not oppose defendant DeJong
supplementing the record.
By Order dated May 23, 2013 and filed May 24, 2013 I granted
defendant DeJong’s motion and indicated that I would consider Dr. DeJong’s
supplemental exhibits and plaintiffs’ response.

-12-

Where a party asserts that a particular fact is, or
cannot be, genuinely disputed, the party must provide support for
its assertion.

Fed.R.Civ.P. 56(c)(1).

Rule 56(c)(1) provides

that party may support its factual assertions by
(A)

citing particular parts of materials in the
record, including depositions, documents,
electronically stored information, affidavits
or declarations, stipulations (including
those made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or

(B)

showing that the materials cited do not
establish the absence or presence of a
genuine dispute, or that an adverse party
cannot produce admissible evidence to support
the fact.

When considering a motion for summary judgment, the
district court must view the facts and record evidence presented
“in the light most favorable to the non[-]moving party.”

North

Hudson, 665 F.3d at 475 (quoting Scott v. Harris, 550 U.S. 372,
380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).
If the moving party shows that there is no genuine
issue of fact for trial, “the non-moving party then bears the
burden of identifying evidence that creates a genuine dispute
regarding material facts.” Id. (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Where a defendant seeks summary judgment, the plaintiff
cannot avert summary judgment with speculation, or by resting on
the allegations in his pleadings, but rather he must present
-13-

competent evidence from which a jury could reasonably find in his
favor.

Ridgewood Board of Education v. N.E. for M.E.,

172 F.3d 238, 252 (3d Cir 1999); Woods v. Bentsen,
889 F.Supp. 179, 184 (E.D.Pa. 1995)(Reed, J.).
“Ultimately, [w]here the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.”

Id. (quoting

Matsushita Electric Industries Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986))
(internal quotations omitted and alteration in original).
FACTS
My September 30, 2011 Opinion granting in part and
denying in part defendants’ motions to dismiss, set forth in
considerable detail the facts alleged in plaintiff’s initial
Complaint, which Opinion I incorporate here.

Because the

standard of review for purposes of adjudicating the within
summary judgment motions is not the same as the standard employed
in my September 30, 2011 Opinion, which adjudicated multiple
motions to dismiss, I only recount here the facts pertinent to
the within summary judgment motions.
Accordingly, upon consideration of the pleadings,
record papers, exhibits, declarations, and depositions, and
drawing all reasonable inferences in favor of the non-moving

-14-

party18, as required by the forgoing standard of review, the
pertinent facts are as follows.
Plaintiffs are Reginald Dennis and Renee Dennis,
husband and wife, and their son, B.D., a minor.

B.D. was an

infant during the time relevant to these causes of action.
Defendants are Allan R. DeJong, M.D., the Medical
Director of the Child at Risk Evaluation (“CARE”) team at A.I.
duPont Hospital for Children in Wilmington, Delaware;19 the
County of Delaware; and employees of the Delaware County Children
and Youth Services (“CYS”).

These CYS defendant employees are

Mary Germond, Director; Meta Wertz, intake administrator; Beth
Prodoehl, kinship administrator; Patricia McGettigan, intake
supervisor; and Gina Giancristiforo, intake case-worker.20
Defendant Dr. Doe remains unidentified.
B.D., the first and only child of Mr. and Mrs. Dennis,
was born at Christiana Hospital on September 17, 2008 following a
prolonged labor and delivery.21

18

Because both plaintiffs and defendants have moved for summary
judgment, I consider the facts in the light most favorable to plaintiffs when
considering defendants’ motions for summary judgment, and consider the facts
in the light most favorable to defendants when considering plaintiffs’ summary
judgment motion.
19
Defendant Dr. DeJong is also the medical director of the
Children’s Advocacy Center of Delaware (“CACD”).
20
Plaintiffs’ Statement of Material Facts in Support of Plaintiffs’
Motion for Partial Summary Judgment (“Plaintiffs’ statement of facts in
support of summary judgment”), ¶¶ 2, 4-8.
21

Id. ¶¶ 13-14

-15-

At the time of the child’s birth, an attending
physician at Christiana Hospital noted that B.D.’s head was in a
right occipital posterior position noted and that he had
“overriding sutures”, which means that the plates of his skull
had not yet completely moved to the abutting position from the
overlapping position during delivery because of the extreme
compression and molding of B.D.’s head during the lengthy labor
and delivery.22
B.D. had multiple visits to pediatricians following his
birth, and no evidence of pain or bruising was present.

However,

on two separate occasions, Mrs. Dennis noticed a single red mark,
one appearing on B.D.’s collar bone, and one appearing on his
back.

In each instance the red mark disappeared the following

morning.23
On November 20, 2008

Mrs. Dennis noticed a momentary

episode of arm limpness and one-sided facial drooping in B.D.
Additionally, B.D. was fussy and vomiting.

The next day, on

November 21, 2008 Mr. and Mrs. Dennis took B.D. to their family
physician, who attributed B.D.’s behavior to a negative reaction
to a vaccination he had recently received.

However, plaintiffs’

doctor did not note any bruising or concern for trauma.24

22
Plaintiffs’ statement of facts in support of summary judgment,
¶¶ 13 and 17.
23

See Id. ¶¶ 13-14, 17, 23-25 and 30.

24

Id. ¶¶ 33-34.

-16-

B.D.’s symptoms did not improve, and on November 22,
2008, Mr. and Mrs. Dennis took B.D. to Christiana Hospital.

At

Christiana Hospital, a computed tomography scan (“CT scan”) of
B.D. was performed, which revealed that B.D. had a left frontal
subdural hematoma.25
Although the examination did not reveal a definite
skull fracture or any bruising or external signs of trauma,
Christiana Hospital issued a Report of Suspected Child Abuse and
referred the matter to CYS and transferred B.D. to A.I. duPont
Hospital for Children.26
On November 22, 2008 B.D. was admitted to duPont
Hospital.

When B.D. was admitted, he required assisted

ventilation, but at the time of his admission, his oxygen level
remained stable and he was not placed on a traditional
ventilator.27
On November 24, 2008 B.D. was given a follow-up CT
scan, Magnetic Resonance Imaging (“MRI”) and a full skeletal
x-ray.

B.D. was placed on a conventional ventilator for

administration of the MRI.

On November 26, 2008 B.D. was removed

25
A subdural hematoma is a collection of blood vessels which adhere
to the skull.
26

Exhibit 1 to the Delaware County Defendants’ summary judgment

motion.
27

Plaintiffs’ statement of facts in support of summary judgment,
¶¶ 51-52 and 222.

-17-

from the ventilator, but had difficulty breathing.

Accordingly,

he was placed back on the ventilator until November 28, 2008.28
Because child abuse was suspected, Dr. DeJong, who
served as the medical director of the CARE team, was assigned as
a consultant to evaluate whether B.D.’s injuries were caused by
abuse.

Multiple doctors at duPont Hospital, including Dr.

DeJong, analyzed B.D.’s medical records and CT scan, MRI and
x-ray reports.29
The doctors who analyzed B.D.’s reports identified B.D.
as potentially suffering from a skull fracture, subdural
hematoma, and rib fractures.

However, not all the doctors who

analyzed B.D.’s records agreed on the specific age of B.D.’s
injuries or the whether a skull fracture could be conclusively
identified.30

28

Plaintiffs’ statement of facts in support of summary judgment,

29

Id. ¶¶ 51-52 and 55.

¶ 226.

30
For example, Dr. Kerry Bron, a duPont radiologist concluded from
the November 24, 2008 CT scan that B.D. suffered from a “stable short segment
skull fracture on the left temporal region” of his head. However, Dr. Rhonda
Kessler, another duPont radiologist, reported that the left temporal fracture
seen on the CT scan, could not be “appreciated” from the x-rays of B.D.’s
skull (Plaintiffs’ summary judgment motion statement of facts, ¶¶ 51-52 and
62).

Likewise Dr. Kessler and Dr. Sharon Gould, another duPont
radiologist, concluded from B.D.’s CT scan or MRI that B.D. suffered from an
“acute on chronic” subdural hematoma.
However, Dr. DeJong did not believe B.D.’s hemorrhage was
“chronic”. Instead, he opined that B.D.’s injury occurred within 72 hours of
his admission to Christiana Hospital on November 22, 2008.

(Footnote 30 continued):

-18-

On November 24, 2008, Dr. DeJong and former defendant
Edward Speedling, a social worker who worked on the CARE team at
duPont, interviewed Mrs. Dennis.

Mrs. Dennis told Dr. DeJong and

Mr. Speedling that her labor lasted 38 hours and explained that
neither she nor Mr. Dennis had done anything to harm B.D.31
However, Mrs. Dennis also told Dr. DeJong and Mr.
Speedling about the small red marks she observed on B.D. and
revealed that she had spoken to Mr. Dennis about how to hold B.D.
appropriately.32
Further, Mrs. Dennis told Dr. DeJong and Mr. Speedling
that on November 20, 2008, B.D. was acting fussy and that
Mr. Dennis spent 10-15 minutes alone with B.D to change his
diaper.
B.D.

At that point, Mr. Dennis had called her to check on

However, neither Mr. or Mrs. Dennis observed anything wrong

B.D. at that time.

However, later that evening when Mrs. Dennis

was feeding B.D., she noticed that B.D. was not moving his arm
and that his hands were shaking.33

(Continuation of footnote 30):
Dr. Kessler’s reported that B.D. suffered from “multiple healing
rib fractures”. Dr. DeJong likewise noted that the rib fractures were
healing, but also estimated that they were two to four weeks old.
31

Oral Deposition of Renee Dennis, October 26, 2012 (“N.T. Renee
Dennis”), page 168-169. (Exhibit 7 to plaintiffs’ opposition to Dr. DeJong’s
summary judgment motion).
32

N.T. Renee Dennis, pages 185.

33

Id. pages 172-177.

-19-

CYS requested that Dr. DeJong summarize the information
he had obtained and that Dr. DeJong provide his opinion on
whether B.D.’s injuries were caused by abuse.

Dr. DeJong

indicated that B.D. suffered from a skull fracture and that his
x-rays revealed healing rib fractures.34
Dr. DeJong opined in his report that the “injury
events” may have occurred on November 20, 2008 and indicated that
he suspected physical child abuse.

Further, Dr. DeJong stated he

did not believe B.D. would be safe alone with either Mr. or Mrs.
Dennis.35
On November 25, 2008 Mr. and Mrs. Dennis voluntarily
went to the CYS office to be interviewed by defendants
Giancristiforo and McGettigan.

Mr. and Mrs. Dennis were

interviewed separately and each denied that B.D. was abused.36
Mrs. Dennis indicated during her interview that she had
noticed bruising on B.D. in the past and had spoken to Mr. Dennis
about how to hold B.D. appropriately.

However, she also

indicated that Mr. Dennis had not hurt B.D.37

34

Exhibit C to defendant DeJong’s motion for summary judgment;
Response of Defendant, Dr. Allan R. DeJong, to Plaintiffs’ Statement of
Undisputed Facts in Support of Their Motion for Partial Summary Judgment
(“Defendant DeJong’s statement of facts in response to plaintiffs’ summary
judgment motion”), ¶ 43.
35

Exhibit C to defendant DeJong’s motion for summary judgment.

36

Exhibit 50 and 51 to plaintiffs’ summary judgment motion.

37

Id.

-20-

Mr. and Mrs. Dennis requested that, if B.D. were
removed from their care, that he be placed to live with either
Mrs. Dennis’ parents, the Groffs, or their family friends, the
Stevensons.

CYS discouraged Mr. and Mrs. Dennis from seeking

placement with the Groffs because the Groffs lived too far away
from duPont Hospital, where continued treatment would be required
after B.D. release.

In her report of the interview, Ms.

Giancristiforo indicated that an out-of-home placement was
planned upon B.D.’s discharge from the hospital.38
Following the interview, Ms. McGettigan spoke to
Officer James Collins, of the Chester County, Pennsylvania,
Police Department about B.D.

Officer Collins indicated that he

planned to begin his investigation on December 2, 2008.

Ms.

McGettigan also spoke to Mr. Speedling about the interview with
Mr. and Mrs. Dennis.39
Mr. Speedling was upset because the police had not
become involved in the case.

Accordingly, Ms. McGettigan

suggested that either Mr. Speedling or Dr. DeJong contact the
police as well.40

38

Exhibit 50 and 51 to plaintiffs’ summary judgment motion; Exhibit
4 to plaintiffs’ opposition to the Delaware defendants’ summary judgment
motion.
39

Exhibit 58 to plaintiffs’ summary judgment motion.

40

Exhibit 52 to plaintiffs’ summary judgment motion.

-21-

On November 26, 2008 Dr. DeJong telephoned former
defendant, Assistant District Attorney Mike Galantino, who then
called Officer Collins.41
On November 26, 2008 Officer Collins spoke to Dr.
DeJong about B.D.’s injuries and Dr. DeJong’s interview with Mrs.
Dennis.

Dr. DeJong stated that Mrs. Dennis had not provided a

viable explanation for B.D.’s injuries and stated that B.D.’s
injuries likely occurred while B.D. was in the care of Mr.
Dennis.42
Later on November 26, 2008 Officer Collins authored an
Affidavit of Probable Cause, which he used to obtain an arrest
warrant for Mr. Dennis.

In the affidavit, Officer Collins

indicated that B.D. was admitted to duPont Hospital for Children
with severe skull fractures, bleeding on the brain, and 13 rib
fractures, and that Dr. DeJong told Officer Collins that the head
injuries to B.D. occurred when the child was in the care of Mr.
Dennis.43
Mr. Dennis was arrested in the early morning of
November 27, 2008.

Bail was set at $100,000.00 cash bail.

A

condition of bail was that Mr. Dennis have no contact with B.D.44

41

Exhibit 40 and 59 to plaintiffs’ summary judgment motion.

42
Exhibit 1 to plaintiffs’ summary judgment motion, Deposition of
Allan R. DeJong, M.D., November 1, 2012 (“N.T. DeJong”), page 224.
43

Exhibit 43 to plaintiffs’ summary judgment motion.

44

Exhibit 40 to plaintiffs’ summary judgment motion.

-22-

Following the arrest and incarceration of Mr. Dennis,
Mrs. Dennis remained with B.D. at duPont Hospital.

B.D.’s doctor

indicated that, upon B.D.’s release from the hospital, the child
would not require medical foster care.

However, CYS insisted

that B.D. be placed in foster care until a full home-study of the
Stevenson’s was completed.45
B.D.’s expected release from duPont Hospital for
Children was December 9, 2008.

However, as a general practice,

CYS does not seek protective custody of a child until the child
is ready to be discharged from the hospital.46
On December 9, 2008 defendant Gina Giancristiforo
authored a memorandum outlining the CYS allegations of abuse
against Mr. and Mrs. Dennis and requested a protective order
concerning the custody of B.D.

Defendants Meta Wertz and

Patricia McGettigan signed their approval of the memorandum, and
it was sent ex parte to Judge Maureen F. Fitzpatrick in the Court
of Common Pleas of Delaware County, Pennsylvania.47
The memorandum indicated that community caregivers (the
Stevensons) had offered to serve as caregivers but that CYS would

45

Exhibit 77 to plaintiffs’ summary judgment motion.

46
Statement of Undisputed Material Facts in Support of Summary
Judgment Motion of Defendants County of Delaware, Mary Germond, Meta Wertz,
Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo (“Delaware
defendants’ statement of facts in support of summary judgment motion”), ¶ 101.
47

Exhibit 3 to the Delaware County defendants’ summary judgment

motion.

-23-

not recommend that the Stevensons be given care of B.D until a
full home-study was completed.48
In addition, the memorandum indicated that Mrs. Dennis
indicated that “the baby’s father could have caused the injuries”
and that “she was fearful of allowing the baby to be alone with
the father yet she failed to protect the baby based on her
beliefs.”49
On December 9, 2008, Judge Fitzpatrick issued an Order
granting CYS protective custody of B.D. and approving B.D.’s
placement in foster care.50
On December 11, 2008 a Right-to-Detain hearing51 was
held before Master David W. McNulty in the Court of Common Pleas
of Delaware County, Pennsylvania.

At the hearing, Mr. and Mrs.

Dennis were represented by counsel and B.D. was assigned a
Guardian Ad Litem, who objected to the return of B.D. to the

48

Exhibit 3 to the Delaware County defendants’ summary judgment
motion. On December 17, 2008 Ms. Giancristiforo referred the Stevensons for a
full home study. Ms. Giancristiforo indicated that the Stevenson’s home was
safe for placement, but that further assessment was required to approve the
Stevenson’s as community caregivers. (Plaintiffs’ statement of facts, ¶ 161).
49

Exhibit 3 to the Delaware County defendants’ summary judgment

motion.
50

Id.

51

Pursuant to 23 Pa.C.S.A. § 6315 an informal hearing must be held
within 72 hours of a child being taken into custody pursuant to a protective
order.

-24-

Dennis household.

At the conclusion of the hearing, an

adjudication hearing was scheduled for January 13, 2009.52
On December 29, 2008, CYS filed a dependency petition,
signed by defendant Mary Germond, an administrator of CYS,
alleging that B.D. was a child dependent on the Commonwealth of
Pennsylvania.
However, for various reasons the January 13, 2009
adjudication hearing was delayed.53

Because no dependency

hearing had been held, Mrs. Dennis filed an emergency petition on

52
Exhibits 4 and 5 to the Delaware County defendants’ summary
judgment motion.
53
Master McNulty determined that he had a conflict of interest which
prevented him from presiding over the adjudication hearing. Accordingly, on
December 26, 2008 counsel for plaintiffs requested a continuance to the
“earliest possible” judicial listing. On January 13, 2013 Master McNulty
granted plaintiffs’ request. (Plaintiffs’ Counterstatement of Facts in
Opposition to Statement of Undisputed Material Facts of Defendants County of
Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and
Gina Giancristiforo (“Plaintiffs’ response to the Delaware County defendants
statement of facts”), ¶¶ 7 and 9).

The adjudicatory hearing was rescheduled before the Honorable
Michael F.X. Coll for February 20, 2009. However, prior to the hearing,
plaintiffs’ counsel again requested a continuance, and the Delaware County
defendants excused their expert witnesses.
On February 20, 2009, the parties appeared before Judge Coll.
However, the adjudicatory hearing was not held because the Delaware County
defendants had excused their witnesses. Additionally, counsel for plaintiffs
indicated that they were not prepared to proceed because they had not received
all of defendants’ expert reports.
Accordingly, Judge Coll rescheduled the adjudicatory hearing for a
date to be determined and ordered that each party provide each other with
their expert reports at least ten days before the yet-to-be-scheduled hearing.
(See Exhibit 15 to Delaware County defendants’ summary judgment motion).
CYS identified two expert medical witnesses whom it planned to
call at the hearing, Dr. DeJong and Dr. June Elcock-Messam, but it did not
provide their expert reports to plaintiffs until February 17, 2009 and April
8, 2009, respectively . (Delaware County defendants’ statement of facts in
support of summary judgment motion, ¶ 18.)

-25-

February 19, 2009 to release B.D. pursuant to 42 Pa.C.S.A.
§ 6335.

At a hearing on February 20, 2009, however CYS agreed to

place B.D. in foster care with the Stevensons, and plaintiffs
considered their emergency petition to be moot.

On February 23,

2009 B.D. was placed with the Stevensons.54
Once B.D. was placed at the Stevensons, Mrs. Dennis was
permitted to attend supervised weekly one-hour visits with B.D.
During her visits, Mrs. Dennis acted appropriately with B.D.
Additionally, Mrs. Dennis successfully completed parenting
classes and met the other requirements specified in her Family
Service Plan.55
Ultimately, the adjudicatory hearing commenced on
April 22, 2009.

However, the hearing was not completed and it

reconvened on June 2, 2009 and then again on July 8, 2009 and
August 21, 2009.
At the July 8, 2009 hearing, counsel for plaintiffs’
requested that the visitation schedule for Mrs. Dennis while B.D.
remained at the Stevenson’s be liberalized.

Judge Coll indicated

that he would consider the request at the conclusion of the
hearing.56
54

See Exhibit 15 to Delaware County defendants’ summary judgment

motion.
55

See plaintiffs’ statement of facts in support of summary judgment
motion, ¶¶ 181-187, 189-198.
56

Delaware County Defendants’ statement of facts in support of
summary judgment motion, ¶ 20.
(Footnote 56 continued):

-26-

On August 21, 2009, at the conclusion of the dependency
hearings, the Delaware County Court of Common Pleas determined
that, although the applicable standard was clear and convincing
evidence, the allegations that B.D. were abused could not be
sustained even by a preponderance of the evidence.

Therefore,

the court dismissed the dependency petition and B.D. was
immediately returned to Mrs. Dennis on August 21, 2009.
Following the dependency hearing, Assistant District
Attorney Galantino decided to pursue the criminal charges against
Mr. Dennis.

However, the Delaware County defendants were not

involved in the criminal prosecution of Mr. Dennis.57
During criminal proceedings against Mr. Dennis,
Dr. DeJong advised Attorney Galantino and other law enforcement
personnel about the nature and circumstances surrounding B.D.’s
injuries.

Throughout this period, Dr. DeJong opined that B.D.

had suffered an inflicted head trauma which likely occurred on
November 20, 2008.58

(Continuation of footnote 56):
For the six months that B.D. resided with the Stevensons, Mrs.
Dennis was permitted one hour of weekly visitation with B.D. Mr. Dennis was
not permitted any visitation with his son pursuant to condition of his bail.
57

Delaware County Defendants’ statement of facts in support of
summary judgment motion, ¶ 22; plaintiffs’ response to Delaware County
defendants’ statement of facts, ¶ 22.
58

Delaware County defendants’ statement of facts in support of
summary judgment motion, ¶ 29.

-27-

Ultimately, Mr. Dennis was accepted into the
Accelerated Rehabilitative Disposition (“A.R.D.”) pre-trial
disposition program.59

Under the A.R.D. program, Mr. Dennis did

not have to plead guilty to the charges asserted against him
(Aggravated assault, Simple assault, and Endangering welfare of
children), and upon completion of the program, the charges were
dismissed.60
On November 19, 2010 Mr. and Mrs. Dennis filed their
initial civil Complaint in the within matter.
CONTENTIONS OF THE PARTIES
Contentions of Dr. DeJong
Plaintiffs have asserted a substantive federal due
process claim (Count VII) and a state-law claim for intentional
infliction of emotional distress against defendant Allan R.
DeJong (Count X).
Defendant Dr. DeJong contends that he is entitled to
judgment in his favor on both claims.
Regarding plaintiffs’ substantive due process claim,
Dr. DeJong contends that plaintiffs’ claim fails because he is
not a state actor; and, even if he were a state actor, plaintiffs

59
A.R.D. is a pretrial probationary program of the Commonwealth of
Pennsylvania.
60

Plaintiffs’ response to Delaware County defendants’ statement of

facts, ¶ 26.

-28-

have not provided evidence that Dr. DeJong engaged in reckless
behavior.
Specifically, Dr. DeJong contends that he was acting as
a private physician and that he was not acting at the direction
of CYS or the Delaware County District Attorney.

Instead, Dr.

DeJong asserts that he was asked to give his opinion as to
whether B.D. was abused.

Further Dr. DeJong asserts that the

District Attorney pursued criminal charges against Mr. Dennis
based on multiple medical opinions--not just the opinion of Dr.
DeJong.
Dr. DeJong contends that even if he were a state actor,
plaintiffs’ substantive due process claim fails because
plaintiffs have failed to establish that Dr. DeJong acted
arbitrarily, in a manner that “shocks the conscience”.
Specifically, Dr. DeJong contends that evidence
supports all of his statements concerning the condition of B.D.
and supports his opinion that B.D. was abused.

More

specifically, Dr. DeJong contends each of the following
assertions made by him, which plaintiffs characterize as
misrepresentations, are supported by evidence: (1) B.D. was on a
ventilator; (2) B.D. had fractured ribs; (3) B.D. had brain
bleeding; and (4) B.D. had a skull fracture.

Furthermore, Dr.

DeJong contends that plaintiffs have not provided sufficient

-29-

evidence that Dr. DeJong misrepresented the conversation he had
with Mrs. Dennis about B.D.
Regarding plaintiffs’ state-law claim against Dr.
DeJong for intentional infliction of emotional distress, Dr.
DeJong contends that he is entitled to summary judgment because
(1) plaintiffs have failed to establish that Dr. DeJong acted in
an extreme or outrageous manner; (2) plaintiffs have failed to
produce an expert opinion indicating that the actions of Dr.
DeJong caused plaintiffs to suffer emotional distress; and
(3) Dr. DeJong is immune from suit as a private physician
required to report suspected child abuse and as an expert
witness.
Contentions of Delaware County Defendants
Plaintiffs assert federal substantive and procedural
due process claims against defendant County of Delaware in Counts
I and II-A of their Amended Complaint.

Plaintiffs assert

procedural due process claims against Delaware County in Counts
III and IV.

Plaintiffs assert substantive due process claims

against Delaware County in Counts V, VI, VII and VIII.
Plaintiffs assert substantive and procedural due
process claims against three of the individual Delaware County
defendants in Count II-B61.

Plaintiffs assert procedural due

61

Meta Wertz, Patricia McGettigan, and Gina Giancristiforo are the
named defendants in Count II-B.

-30-

process claims against one individual defendant in Count III62,
and against two individual defendants in Count IV63.
The Delaware County defendants collectively moved for
summary judgment on all claims asserted against them. Because
plaintiffs consented to the dismissal of Counts I, VI and VII
against the Delaware County defendants, I address only their
contentions concerning the remaining counts.64
In Count II-A, plaintiffs allege that Delaware County
violated plaintiffs’ substantive and procedural due process
rights based on Delaware County’s (1) placement of B.D. with
strangers when Mr. and Mrs. Dennis maintained their innocence;
(2) failure to timely schedule a shelter care hearing; and
(3) misrepresentation of facts and law in an ex parte memorandum
to obtain a custody order.
The Delaware County defendants contend that plaintiffs
have failed to produce evidence that the conduct of defendants
“shocks the conscience” and failed to establish that Delaware
County had a custom or policy of unconstitutional conduct.
Specifically, the Delaware County defendants contend
that plaintiffs have not shown that Lancaster County, where Mrs.
Dennis’ parents lived, would have accepted the transfer of B.D.,

62

Mary Germond is the named individual defendant in Count III.

63

Patricia McGettigan, and Gina Giancristiforo are the named
individual defendants in Count IV.
64

See plaintiffs’ memorandum pages 4 and 29.

-31-

and therefore placing B.D. in foster care did not violate
plaintiffs’ rights.

Furthermore, the Delaware County defendants

assert that plaintiffs never advised the Delaware Court of Common
Pleas that they desired B.D. to be placed with his grandparents.
Count II-B asserts a substantive and procedural due
process claim against three of the individual Delaware County
defendants (Wertz, McGettigan and Giancristiforo) based on their
failure to seek a pre-deprivation hearing.

The Delaware County

defendants contend that plaintiffs do not have a right to a predeprivation hearing.
Moreover, the Delaware County defendants contend that
it is constitutional to initiate child custody proceedings by
obtaining an ex parte order.
Finally, the Delaware County defendants contend that
even if a constitutional violation had occurred, all of the
individual defendants are entitled to absolute or qualified
immunity.
In Count III, as asserted against Delaware County
and Mary Germond, plaintiffs allege that their rights to
procedural due process were violated based on Delaware County
and Ms. Germond’s failure to file a dependency petition within
48-hours.
The Delaware County defendants contend that plaintiffs
have failed to establish that such delays were part of a custom

-32-

or policy or that defendant Germond caused any of the delay.
Rather, the Delaware County defendants contend that the evidence
demonstrates that the delay in seeking the dependency petition
was inadvertent and that there is no evidence of purposeful
delay.
Moreover, the Delaware County defendants assert that
the delay in filing the dependency petition did not delay the
scheduling of the hearing and that even if a constitutional
violation had occurred, Mary Germond is entitled to qualified
immunity.
Count IV also asserts that Delaware County, Patricia
McGettigan, and Gina Giancristiforo violated plaintiffs’
procedural due process rights based upon the delay in scheduling
dependency hearings.

The Delaware County defendants contend that

plaintiffs do not have an absolute right to an adjudication
hearing within 10 days of the filing of a dependency petition.
Moreover, the Delaware County defendants assert that the court–not the child welfare agency–-is responsible for scheduling the
hearing.65

65
In addition, the Delaware County defendants contend that because
plaintiffs filed a petition for release in the Court of Common Pleas of
Delaware County, the Rooker-Feldman doctrine bars plaintiffs from challenging
the delay in the dependency proceeding because such a challenge amounts to a
challenge of a state court judgment. See Rooker v. Fidelity Trust Company,
263 U.S. 413, 44 S.Ct. 149, 68 L.Ed 362 (1923) and District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).

-33-

Moreover, the Delaware County defendants contend that
plaintiffs’ counsel was not prepared to proceed at an earlier
dependency hearing and continued the case to a later time in
order to procure experts and discovery.
Next, the Delaware County defendants contend that
plaintiffs have failed to demonstrate that the alleged violations
amounted to more than mere negligence.

Finally the Delaware

County defendants contend that even if the delay of the
dependency hearing amounted to a constitutional violation, the
individual defendants are entitled to qualified immunity.
In Count V, plaintiffs assert a substantive due process
claim against Delaware County based upon CYS’ refusal to provide
Mrs. Dennis with more visitation rights with B.D., allegedly in
retaliation for Mrs. Dennis maintaining her innocence.
The Delaware County defendants contend that plaintiffs
have failed to show that the refusal of CYS to return B.D. to
Mrs. Dennis’ home pending the investigation and hearing was
retaliatory.
Moreover, the Delaware County defendants contend that
the issue of visitation rights was before the Delaware County
Court of Common Pleas and that the recommendations of CYS were
approved by that court.

Therefore, defendants assert that

plaintiffs cannot challenge the actions of CYS, which were taken
in the interest of B.D.

-34-

In Count VIII, plaintiffs assert a claim against
Delaware County based on its failure to properly train and
supervise caseworkers, supervisors and administrators regarding
filing dependency petitions, scheduling dependency trials and ex
parte communications with the court.
The Delaware County defendants contend that Count VIII
fails as a matter of law because plaintiffs have failed to
establish that the city officials were acting pursuant to an
official policy or a custom so permanent and well-settled as to
have the force of law.
Specifically, the Delaware County defendants contend
that plaintiffs lack any factual support for their allegation
that the County adopted a medical-legal presumption that subdural
hematomas in babies are caused by physical abuse.
Moreover, the Delaware County defendants assert that
plaintiffs have failed to produce any evidence that Delaware
County has a policy of delaying either the filing of dependency
petitions or the holding of hearings.
Accordingly, the Delaware County defendants contend
that plaintiffs have failed to establish that defendants failed
to supervise or adequately train its employees.

-35-

Contentions of Plaintiffs
A. Claims against Dr. DeJong
Plaintiffs contend that Dr. DeJong is not entitled to
summary judgment.66

Specifically, plaintiffs contend that Dr.

DeJong is a state actor because he serves as the medical director
of the Child Advocacy Center of Delaware (“CACD”) at duPont
hospital.

Plaintiffs assert that CACD functions as a state

agency and coordinated its investigation of Mr. Dennis with law
enforcement officers and the Delaware County defendants.
Plaintiffs further contend that Dr. DeJong should be
considered to be a state actor because the Delaware County
defendants and law enforcement officials exclusively relied on
his opinions in the handling of the investigation concerning
whether B.D. was abused by Mr. Dennis.
Plaintiffs also assert that they have produced
sufficient evidence that Dr. DeJong misrepresented medical
evidence.67

Further, plaintiffs contend that Dr. DeJong is

collaterally estopped from arguing that B.D. was abused because
the Delaware County Court of Common Pleas had already held that

66

Plaintiffs also contend that they are entitled to summary judgment
on Count VII as asserted against defendant Dr. DeJong. Plaintiffs’
contentions regarding why they are entitled to summary judgment are
substantially the same as their contentions regarding why defendant DeJong is
not entitled to summary judgment.
67

Plaintiffs contend that there is no dispute that Dr. DeJong made
multiple gross misrepresentations of pertinent medical facts and that
plaintiffs are entitled to summary judgment.

-36-

the Delaware County defendants, with Dr. DeJong as their primary
witness, failed to provide sufficient evidence of abuse.
Furthermore, plaintiffs contend that Dr. DeJong made
the following misrepresentations: (a) that B.D. was on a
ventilator when admitted to duPont hospital; (b) that B.D.’s rib
fractures were two to four weeks old (to correspond to his
assertion that the red marks on B.D. were traumatic bruises); (c)
that B.D. had a significant skull fracture; (d) the timing of
B.D.’s subdural hematoma blood collection (to falsely rule out
birth trauma as a cause); and (e) the statements Dr. DeJong
attributed to Mrs. Dennis.
Plaintiffs contend that issues of fact preclude
granting summary judgment to Dr. DeJong on their claim for
intentional infliction of emotional distress.

Specifically,

plaintiffs contend that the pattern of misrepresentations made by
Dr. DeJong amount to outrageous conduct and that Dr. DeJong is
not immune from suit because the misrepresentations were made in
bad faith.
B. Claims against the Delaware County defendants
Plaintiffs consent to the dismissal of Counts I, VI and
VII against defendant County of Delaware.

However, plaintiffs

contend that neither defendant County of Delaware nor any
individual Delaware County defendant is entitled to summary

-37-

judgment on the remaining counts, II-A, II-B, III, IV, V and
VIII.68
Plaintiffs contend that neither Heck v. Humphrey,
512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), nor Giles
v. Davis, 427 F.3d 197 (3d Cir. 2005) bar the claims asserted by
Mr. Dennis.

Specifically, plaintiffs contend that Mr. Dennis’

entrance into the state Accelerated Rehabilitative Disposition
program in a criminal case does not bar his civil claims in a
dependency matter.
In addition, plaintiffs contend that B.D.’s claims are
cognizable.

Specifically, plaintiffs assert that the Delaware

County defendants have not cited any authority which indicates
that being represented by a guardian ad litem bars B.D., or Mr.
and Mrs. Dennis, from bringing their claims.
Regarding Count II-A, plaintiffs contend that Mr. and
Mrs. Dennis clearly expressed their desire that B.D. be placed
with the Stevensons rather than in foster care with strangers.
Further plaintiffs contend that the law did not require a “full
home study” prior to placing B.D. with the Stevenson’s, and that
the County of Delaware Ex Parte Memorandum misrepresented that a
full home study was required.

68

Plaintiffs also contend that they are entitled to summary judgment
on Counts II-A,II-B, III, IV and V as asserted against the Delaware County
defendants. Plaintiffs’ contentions regarding why they are entitled to
summary judgment mirror their contentions regarding why the Delaware County
defendants are not entitled to summary judgment.

-38-

Accordingly, plaintiffs contend that the Delaware
County defendants’ summary judgment motion with respect to Count
II-A should be denied and that plaintiffs’ summary judgment
motion should be granted.
With respect to Count II-B, plaintiffs contend that in
this case, use of an ex parte memorandum and taking custody of
B.D. without a pre-deprivation hearing deprived plaintiffs of
their federal due process rights.
Specifically, plaintiffs contend that Miller v. City of
Philadelphia, 174 F.3d 368 (3d Cir. 1999) is distinguishable from
this case and stands for the proposition that ex parte requests
are constitutional only in an emergency, where pre-deprivation
process would insufficiently protect the safety of a child.
Here, plaintiffs assert that no emergency justified use of the ex
parte memo or removal of B.D. from his parents’ custody without a
pre-deprivation hearing.
Regarding Count III, which alleges due process
violations for defendants’ late filing of the dependency
petition, plaintiffs contend that defendants are not entitled to
summary judgment.
Specifically, plaintiffs contend that Pennsylvania law
requires a dependency petition to be filed within 48 hours if at
an informal hearing protective custody is deemed necessary.

-39-

Further, plaintiffs contend that the dependency
petition gives them notice that abuse is suspected.

Accordingly,

plaintiffs contend that they suffered harm from the delay and the
inadequate petition because those things prejudiced them from
preparing their defense.
Count IV alleges federal due process violations based
on the delay in scheduling the dependency hearing and delay in
providing plaintiffs with discovery.

Plaintiffs contend that

defendants are not entitled to summary judgment because the
Delaware County defendants delayed providing plaintiffs with
defendants’ expert reports during the dependency proceedings.
Plaintiffs contend that the delay of the Delaware
County defendants in producing their expert reports forced
plaintiffs to seek continuances of the dependency trial, thereby
delaying the dependency proceedings.
Plaintiffs also contend that the Rooker-Feldman
doctrine does not bar their claim because plaintiffs are not
seeking reversal of any state court order.

Specifically,

plaintiffs argue that they are not contending that the Delaware
Court of Common Pleas failed to release B.D.

Rather, plaintiffs

contend that the Delaware County defendants had full control over
scheduling the first day of the dependency hearing and that those
defendants delayed scheduling this proceeding.

-40-

Count V asserts that the Delaware County defendants
violated plaintiffs’ due process rights by refusing to permit
Mrs. Dennis to visit B.D. more frequently while the dependency
proceedings were pending.

Plaintiffs assert that the Delaware

County defendants withheld more frequent visitation rights
because Mrs. Dennis proclaimed her innocence.
Plaintiffs contend that defendants are not entitled to
summary judgment because Mrs. Dennis was described as having good
parenting skills, and therefore the Delaware County defendants
did not have a valid basis to restrict visitation rights of Mrs.
Dennis.
Count VIII asserts a claim against Delaware County for
failure to properly train and supervise caseworkers, supervisors
and administrators about dependency proceedings.

Plaintiffs

contend that the Delaware County defendants are not entitled to
summary judgment on this count because the County maintains an
unconstitutional policy of never providing pre-deprivation
hearings when Delaware County employees seek protective custody
of a child.
Further, plaintiffs assert that defendant Mary Germond,
the top administrator at CYS, required her name to be affixed to
every dependency petition, but that she did not review those
petitions to ensure that they comported with the applicable

-41-

rules.

Nor did Ms. Germond review the facts of the dependency

cases with the intake administrator.
Finally, plaintiffs contend that defendant Germond’s
lack of knowledge about the particular dependency petition in
this case does not absolve her from liability.
APPLICABLE LAW
In order to address the merits of each party’s motion
for summary judgment, it is necessary to examine the applicable
law governing plaintiffs’ claims.
42 U.S.C. § 1983
Plaintiffs’ assert constitutional claims actionable
against defendants through 42 U.S.C. § 1983.

Section 1983 is an

enabling statute which does not create any substantive rights.
Rather, it provides private citizens with a remedy for the
violation of federal constitutional or statutory rights by a
state actor.

Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000).

To state a claim under section 1983, plaintiffs must allege that
a defendant acting under color of state law deprived plaintiffs
of a federal constitutional or statutory right.

Gruenke, 225

F.3d at 298.
After the United States Supreme Court decision in
Monell v. Department of Social Services, 436 U.S. 658, 694,
98 S.Ct. 2018, 2037-2038, 56 L.Ed.2d 611, 638 (1978), a local
government cannot be sued pursuant to section 1983 for injuries

-42-

inflicted solely by its employees.

Rather, local governments can

only be held liable under section 1983 for “their own illegal
acts”.

Connick v. Thompson, __ U.S. __, __, 131 S.Ct. 1350,

1359, 179 L.Ed.2d 417, 426 (2011) (internal quotations
omitted)(emphasis in original).
The United States Court of Appeals for the Third
Circuit has recognized liability for local governments in three
circumstances:
First, the municipality will be liable if its
employee acted pursuant to a formal government
policy or a standard operating procedure long
accepted within the government entity; second,
liability will attach when the individual has
policy making authority rendering his or her
behavior an act of official government policy;
third, the municipality will be liable if an
official with authority has ratified the
unconstitutional actions of a subordinate,
rendering such behavior official for liability
purposes.
McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005)(internal
citations omitted).
Plaintiffs must prove that the action in question
conducted pursuant to official municipal policy caused their
injury.

Connick, __ U.S. at __, 131 S.Ct. at 1359,

179 L.Ed.2d at 426.
An official municipal policy includes (1) the decisions
of a government’s lawmakers, (2) the acts of its policymaking
officials, and (3) practices so persistent and widespread as to
practically have the force of law.
-43-

Id.

An official has policymaking authority for Monell
purposes when (1) as a matter of state law, the official is
responsible for making policy in the particular area of county
business in question; and (2) the official’s authority to make
policy in that area is final and unreviewable.

Hill v. Borough

of Kutztown, 455 F.3d 225, 245-246 (3d Cir. 2006).
Accordingly, a municipality may be liable for a single
act by a policymaking official if that the action is taken or
directed by the county’s authorized decisionmaker.

Oklahoma City

v. Tuttle, 471 U.S. 808, 823-824, 105 S.Ct. 2427, 2436,
85 L.Ed.2d 791, 804 (1985).
Likewise, when a subordinate's decision is subject to
review by the municipality's authorized policymakers, the action
of the subordinate may be attributable to the municipality if the
authorized policymakers approved the decision and the basis for
it.

St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915,

926, 99 L.Ed.2d 107, 120 (1988).
Due Process in Child Abuse Cases
Plaintiffs are guaranteed due process of law pursuant
to the Fourteenth Amendment to the United States Constitution.
The Fourteenth Amendment provides, in relevant part, “nor shall
any State deprive any person of life, liberty, or property,
without due process of law.”

U.S. Const. amend. XIV, cl. 1.

-44-

Plaintiffs bring claims for violations of both substantive and
procedural due process.
Substantive due process rights are those rights which
are “fundamental” under the Constitution.

Nicolas v.

Pennsylvania State University, 227 F.3d 133, 139-141 (3d Cir.
2000).

The United States Supreme Court has recognized a

“fundamental liberty interest of natural parents in the care,
custody, and management of their child” protected by the
Fourteenth Amendment.

Miller v. City of Philadelphia,

174 F.3d 368, 374 (3d Cir. 1999)(quoting Santosky v. Kramer,
455 U.S. 745, 753, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606
(1982)); see also Anspach v. City of Philadelphia,

503 F.3d 256,

261 (3d Cir. 2007).
“The touchstone of due process is the protection of the
individual against arbitrary action of government.”
174 F.3d at 374 (internal quotations omitted).

Miller,

To incur

liability, the objective character of the government action must
be so egregious that it “shocks the conscience”.

Miller,

174 F.3d at 375.
Specifically, the United States Court of Appeals for
the Third Circuit has held that child welfare workers abridge an
individual’s substantive due process rights where their actions
“exceed both negligence and deliberate indifference, and reach a
level of gross negligence or arbitrariness that indeed ‘shocks

-45-

the conscience.’”

Miller, 174 F.3d at 375-376.

The Third

Circuit, in explaining Miller, held that in order for a child
welfare worker to be liable for removing a child from his parents
upon suspicions of abuse, the worker must have “consciously
disregarded a great risk that there had been no abuse.”

Ziccardi

v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir. 2002).
There may be cases in which a child is justifiably
removed from the home, without violating due process, even where
a later investigation reveals no abuse actually occurred.
Croft v. Westmoreland County Children and Youth Services,
103 F.3d 1123, 1126 (3d Cir. 1997).

The focus for due process

purposes is “whether the information available to the defendants
at the time would have created an objectively reasonable
suspicion of abuse justifying the degree of interference” with
the rights of parents.

Croft, 103 F.3d at 1126.

“Absent such

reasonable grounds, governmental intrusions of this type are
arbitrary abuses of power.”

Id.

To state a Section 1983 claim for deprivation of
procedural due process, plaintiffs must allege that: (1) they
were deprived of an individual interest that is encompassed
within the Fourteenth Amendment’s protection of life, liberty or
property; and (2) the procedures available did not provide due
process of law.

Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.

2000).

-46-

Regarding the first requirement, as discussed above,
parents have a constitutionally cognizable liberty interest in
the care, custody, and management of their children.
174 F.3d at 374.

Miller,

Regarding the procedures available, “the

fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner.”
Id. at 373 (internal quotations omitted).
To determine the extent the procedures required, a
court must balance several factors: (1) the private interest that
will be affected by the official action; (2) the risk of an
erroneous deprivation of such an interest through the procedures
used; (3) the probable value, if any, of additional or substitute
procedural safeguards; and (4) the government’s interest
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
would entail.

B.S. v. Somerset County, 704 F.3d 250, 271

(3d Cir. 2013) citing Matthews v. Eldridge, 424 U.S. 319, 333,
96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Immunities for Government Officials
In Section 1983 claims for violations of procedural and
substantive due process, state actors may assert an affirmative
defense of absolute or qualified immunity.
Absolute immunity “defeats a suit at the outset, so
long as the official’s actions were within the scope of the

-47-

immunity.”

Imbler v. Pachtman, 424 U.S. 409, 419 n.13,

96 S.Ct. 984, 990 n.13, 47 L.Ed.2d 128, 137 n.19 (1976).

The

Supreme Court has held that judges69, prosecutors70, and
witnesses71, are entitled to absolute immunity when they perform
judicial or quasi-judicial acts that are integral parts of the
judicial process.

See Ernst v. Child and Youth Services, 108

F.3d 486, 494 (3d Cir. 1997).
The Third Circuit Court of Appeals has held that child
welfare workers are also entitled to absolute immunity “for their
actions on behalf of the state in preparing for, initiating, and
prosecuting dependency proceedings.

Their immunity is broad

enough to include the formulation and presentation of
recommendations to the court in the course of such proceedings.”
Ernst, 108 F.3d at 495.
However, the “investigative or administrative” actions
of child welfare workers are not afforded absolute immunity.
Rather, to determine whether a child welfare worker is entitled
to absolute immunity, a court must consider the “what function
their acts served”.

69

B.S., 704 F.3d at 266.

Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288

(1967).
70

Imbler, supra.

71

Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96

(1983).

-48-

Qualified immunity, on the other hand, applies to all
public officials and must be analyzed in light of the
circumstances of each particular case.

Qualified immunity

protects government officials from insubstantial claims in order
to “shield officials from harassment, distraction, and liability
when they perform their duties reasonably.”

Pearson v. Callahan,

555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565, 573
(2009).
In resolving a claim for qualified immunity, a court
must decide: (1) whether the facts that a plaintiff has alleged
or shown make out a violation of a constitutional right; and
(2) whether the right at issue was clearly established at the
time of defendant’s alleged misconduct.

Pearson,

555 U.S. at 232, 129 S.Ct. at 815-816, 172 L.Ed.2d at 573.
A court may address either of these prongs first, based on the
particular circumstances of the case at hand.

Pearson,

555 U.S. at 236, 129 S.Ct. at 818, 172 L.Ed.2d at 576.
The constitutional right at issue is “clearly
established” where the “contours of the right [are] sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.”

Wilson v. Layne, 526 U.S. 603, 614-

615, 119 S.Ct. 1692, 1699, 143 L.Ed.2d 818, 830 (1999) (quoting
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039,
97 L.Ed.2d 523, 531 (1987)).

-49-

A court must consider the state of the existing law at
the time of the alleged violation and the circumstances confronting the official to determine whether a reasonable state
actor could have believed his conduct was lawful.

MFS Inc. v.

Dilazaro, 771 F.Supp.2d 382, 449 (E.D.Pa. 2011)(internal
quotation omitted).
The United States Court of Appeals for the Third
Circuit has held that the determination of immunity should be
made as early as possible in civil actions against government
officials.

Thomas v. Independence Township, 463 F.3d 285, 295

(3d Cir. 2006).

Qualified immunity provides immunity from suit

instead of merely providing a defense to liability.

Pearson,

555 U.S. at 231, 129 S.Ct. at 815, 172 L.Ed.2d at 573.72
Pennsylvania Law Governing Dependency Proceedings
Many of plaintiffs’ allegations spring from alleged
violations of Pennsylvania law regarding the process of removing
72

Nevertheless, the Third Circuit has explained that
the importance of resolving qualified immunity questions
early is in tension with the reality that factual disputes
often need to be resolved before determining whether
defendant’s conduct violated a clearly established
constitutional right.... A decision as to qualified
immunity is premature when there are unresolved disputes of
historical facts relevant to the immunity analysis.

Phillips v. County of Allegheny, 515 F.3d 224, 242 n.7 (3d Cir. 2008) (citing
Curley v. Klem, 499 F.3d 199 (3d Cir. 2007)) (internal punctuation omitted).
The normal principles of summary judgment apply when qualified
immunity is at issue. It is inappropriate to grant summary judgment if there
are material factual disputes as to whether a constitutional violation has
occurred or whether the constitutional right is clearly established. See
Curley, 499 F.3d at 208; Estate of Smith v. Marasco, 430 F.3d 140, 148 n.3
(3d Cir. 2005).

-50-

a child from his parents.

The applicable state-laws governing

dependency proceedings are the Child Protective Services Law,
23 Pa.C.S.A. §§ 6301-6386, and the Juvenile Act, 42 Pa.C.S.A.
§§ 6301-6375.
Under 23 Pa.C.S.A. § 6315(a), a child may be taken into
“protective custody” pursuant to a court order issued according
to 42 Pa.C.S.A. § 6324.

“Protective custody” is a temporary

solution for a child at risk of abuse.

42 Pa.C.S.A. § 6324(1).

Additionally, 23 Pa.C.S.A. § 6315 provides that upon obtaining an
order for protective custody, an informal hearing must be held
within 72 hours to determine whether to continue protective
custody.

See also 42 Pa.C.S.A. § 6332.
If at this informal hearing it is determined that

protective custody should be continued, then CYS has 48 hours to
file a petition with the court alleging that the child is a
dependent child, which is a more long-term solution and requires
hearings to determine whether the child is a “dependent child”.
23 Pa.C.S.A. § 6315(d).
A dependent child, in relevant part,
is without proper parental care or control,
subsistence, education as required by law, or
other care or control necessary for his physical,
mental, or emotional health, or morals. A
determination that there is a lack of proper
parental care or control may be based upon
evidence of conduct by the parent, guardian or
other custodian that places the health, safety or
welfare of the child at risk, including evidence
of the parent's, guardian's or other custodian's
-51-

use of alcohol or a controlled substance that
places the health, safety or welfare of the child
at risk.
42 Pa.C.S.A. § 6302.
A dependency hearing shall be held not later than ten
days after the filing of the dependency petition.
42 Pa.C.S.A. § 6335(a).73
Intentional Infliction of Emotional Distress
Under Pennsylvania law, which follows the standard set
forth in the Restatement (Second) of Torts, § 46, the tort of
intentional infliction of emotional distress occurs where a
person, whose acts constitute extreme or outrageous conduct,
intentionally inflicts severe emotional distress on another
person.

Hunger v. Grand Central Sanitation, 447 Pa.Super. 575,

583-584, 670 A.2d 173, 177 (1996).
73
The focus of dependency proceedings is “the best interest of the
child” and “protect[ing] that child from any party who may have hurt or may
continue to hurt [the] child”, and the focus is not on proving who inflicted
the abuse. C.S. v. Department of Public Welfare, 972 A.2d 1254, 1258
(Pa.Commw. 2009).

The nature of dependency proceedings is further described as
follows:
In dependency proceedings, which are held pursuant to the
Juvenile Act, 42 Pa.C.S.A. §§ 6301-6375, the county agency
first has the burden of establishing through clear and
convincing evidence that a minor was abused, but then need
only prove the identity of the perpetrator by prima facie
evidence. The Superior Court [of Pennsylvania] has defined
the prima facie evidence standard in dependency cases as a
mere presumption that the abuse normally would not have
occurred except by reason of acts or omissions of the
parents.
C.S., 972 A.2d at 1259 (internal citations and quotations omitted).

-52-

Conduct is considered “extreme or outrageous” where the
conduct goes “beyond all possible bounds of decency, and [is]
regarded as atrocious, and utterly intolerable in a civilized
community.”

Hunger, 447 Pa.Super. at 584, 670 A.2d at 177

(quoting Restatement (Second) of Torts, § 46 comment (d));
see also Kazatsky v. King David Memorial Park, Inc.,
515 Pa. 183, 191, 527 A.2d 988, 991 (1987).

Plaintiffs who claim

that they suffered emotional distress must substantiate these
claims with competent medical evidence.

Hunger, 447 Pa.Super.

at 584-585, 670 A.2d at 177-178.
DISCUSSION
Count I
Plaintiffs concede that they did not produce sufficient
evidence to support their claim in Count I.

Accordingly,

Count I is dismissed from plaintiffs’ Amended Complaint with
prejudice.
Counts II-A and II-B
In Count II-A, plaintiffs allege that defendant County
of Delaware violated plaintiffs’ substantive and procedural due
process rights based on Delaware County’s (1) placement of B.D.
with strangers pending the dependency hearing; (2) failure to
timely schedule a shelter care hearing; and (3) making

-53-

misrepresentations to obtain an ex parte order concerning
custody.
Count II-B asserts a substantive and procedural due
process claim against three of the individual Delaware County
defendants based on their failure to seek a pre-deprivation
hearing.
Each of these alleged substantive and procedural due
process violations arise from defendant Gina Giancristoforo’s ex
parte memorandum to Judge Maureen F. Fitzpatrick, which outlined
the allegations of abuse against Mr. and Mrs. Dennis and
requested a protective order of custody concerning B.D.
Specifically, the ex parte memorandum was used by CYS
to obtain custody of B.D. without providing Mr. and Mrs. Dennis
an opportunity to be heard at a pre-deprivation hearing.
Additionally, because the memorandum stated that there were “no
known family resources to care for the baby”, and that the
Stevensons required a “full resource home study before the agency
would recommend that the baby be moved to their care”, B.D. was
placed in foster care with strangers.74
With respect to Count II-A, plaintiffs have failed to
produce sufficient evidence that Delaware County violated
plaintiffs’ substantive and procedural due process rights because

74

Exhibit 3 to Delaware County defendants’ summary judgment motion.

-54-

they have failed to establish that the alleged misrepresentations
made in the ex parte memorandum were part of a custom or policy
of Delaware County.
Plaintiffs do not appear to contend, and have not
provided any evidence establishing, that CYS’s misrepresentations
in protective custody proceedings were so persistent and
widespread as to practically have the force of law.
U.S. at

, 131 S.Ct. at 1359, 179 L.Ed.2d at 426.

See Connick,
In fact,

plaintiffs have not provided any evidence that Delaware County
employees made any misrepresentations outside the context of
B.D.’s dependency proceedings.
Nor have plaintiffs established that the alleged
misrepresentations made in the ex parte memorandum were made by a
policy-making official.

Defendant Giancristiforo, the author of

the memorandum, was a case worker at CYS, and does not qualify as
a policy-making official.

Rather, the December 9, 2008 ex parte

memorandum plainly indicates that it was approved by defendants
McGettigan and Wertz.
Additionally, although defendants McGettigan and Wertz
approved the ex parte memorandum, plaintiffs have failed to
establish that their decisions were final and unreviewable.
Hill v. Borough of Kutztown, 455 F.3d at 245-246.

-55-

See

Defendant McGettigan was an intake supervisor at CYS
who worked with defendant Giancristiforo in preparation of the
December 9, 20008 ex parte memorandum.

Defendant Wertz was an

intake administrator at CYS and also signed her approval of the
December 9, 2008 ex parte memorandum.

Ms. Wertz had authority to

review the decisions of both Ms. Giancristiforo and Ms.
McGettigan.75

Because Ms. McGettigan’s conduct was reviewable by

Ms. Wertz, Ms. McGettigan does not qualify as a policy-making
official.
Moreover, although Ms. Wertz’ could review the
decisions of Ms. Giancristiforo and Ms. McGettigan, her approval
of the ex parte memorandum was not a final, unreviewable
decision.

Rather, CYS’ legal department reviewed the ex parte

memorandum before it was sent to Judge Fitzpatrick.76
Moreover, even if Ms. Wertz qualified as a policymaking official, plaintiffs have not established that Ms. Wertz
was aware that any of the representations in the December 9, 2008
ex parte memorandum were potentially false.

Rather, it was

Ms. Giancristiforo and Ms. McGettigan -- not Ms. Wertz -- who

75
See Exhibit 4 to plaintiffs’ summary judgment motion, Deposition
of Patricia McGettigan, October 24, 2012 (“N.T. McGettigan”), pages 61-62.
76
Exhibit 4 to Delaware County defendants’ summary judgment motion,
Deposition of Gina Giancristiforo, June 29, 2012 (“N.T. Giancristiforo”),
pages 25-26; Exhibit 2 to plaintiffs’ summary judgment motion, Deposition of
Mary Germond, October 24, 2012 (“N.T. Germond”), page 56.

-56-

interviewed Mr. and Mrs. Dennis and prepared the ex parte
memorandum.77
Therefore, even if Ms. Wertz qualified as a policymaking official, plaintiffs have failed to establish that she had
any role in the allegedly unconstitutional conduct involved in
preparation of the ex parte memorandum.78
Accordingly, plaintiffs have failed to establish that
Delaware County had a policy or custom of making misrepresentations to obtain an ex parte custody order.79

77
Plaintiffs did not depose Ms. Wertz, and it is not clear from the
record what her role was in approving the memorandum. However, plaintiffs
cannot establish that Delaware County had a custom or policy of making misrepresentations when seeking protective custody orders, without providing
evidence that a policy-making official was aware that the representations in
the memorandum were false. See St. Louis, 485 U.S. at 127, 108 S.Ct. at 926,
99 L.Ed.2d at 120, which held that the action of the subordinate may be
attributable to the municipality if the authorized policymakers approved the
decision and the basis for it.
78
Plaintiffs contend that my September 30, 2011 Opinion already
decided that Ms. Wertz was a policy-making official. This contention is
misguided. My September 30, 2011 Opinion indicated that “[a]t this stage of
the proceedings, plaintiffs have sufficiently alleged that Ms. Wertz is
responsible for setting the policy for the intake department at CYS.”
(September 30, Opinion, page 80) (emphasis added).

However, at the summary judgment stage, plaintiffs must provide
evidence, as opposed to mere allegations, that Ms. Wertz was a policy-making
official. Plaintiffs have failed to provide such evidence.
79

Even if plaintiffs had established that the assertions in the
memorandum were made by a policy-making official, plaintiffs have not
established that the purported misrepresentations “shock the conscience.”
For example, the assertion in the ex parte memorandum that no
known family resources were available does not shock the conscience because
even though the Groff’s had volunteered to care for B.D., they were not
feasible caretakers because B.D. required continual visits to duPont Hospital
for Children after his release, and the Groffs lived an hour and a half from
the hospital.

(Footnote 79 continued):

-57-

Additionally, while Delaware County had a policy of
pursuing protective custody orders, without providing parents
with a pre-deprivation hearing, the Third Circuit has held that
initiating child custody proceedings by ex parte order is
generally constitutional so long as a prompt post-deprivation
hearing is held.

Miller, 174 F.3d at 372 n.4.

Here, plaintiffs received a prompt post-deprivation
hearing.

Therefore, Delaware County’s failure to schedule a

hearing prior to seeking custody of B.D. did not violate
plaintiffs’ due process rights.
Likewise, even if Delaware County had a policy to
always conduct a full home study of prospective foster care
parents, such a policy does not shock the conscience.

Completing

a comprehensive review of potential caregivers enables CYS to
assess whether the prospective caregivers will be able to protect

(Continuation of footnote 79):
In fact, at the time B.D.’s placement was being considered by CYS,
Mr. and Mrs. Dennis did not dispute CYS’ assessment that the Groff’s lived too
far away.
(See N.T. Renee Dennis, pages 228 and 231).
Likewise, the assertion in the memorandum that CYS believed a full
home study was required was not a misrepresentation which shocks the
conscience. Although a full home study was not required by law, CYS had the
authority and discretion to conduct a full home study under Pennsylvania law.
See 55 P.S. § 3700.70.
Further, while a dispute of fact exists as to whether Mrs. Dennis
told CYS, as stated in the ex parte memorandum, that “the baby’s father could
have caused the injuries”, this representation does not appear material to CYS
obtaining custody of B.D. In fact, the memorandum also states that Mrs.
Dennis did not acknowledge that the injuries are non-accidental. (Exhibit 3
to Delaware County defendants’ summary judgment motion).

-58-

the child.

This seems particularly necessary when the

prospective caregivers have not acknowledged that the accused
parents may have abused the child.80
Therefore, Delaware County’s temporary placement of
B.D. with strangers did not violate plaintiffs’ substantive due
process rights.
For all of the foregoing reasons, the Delaware County
defendants’ summary judgment motion is granted with respect to
Count II-A.
Like the claim against the County of Delaware in Count
II-A, plaintiffs have failed to establish that the individual

80

See N.T. McGettigan, page 65.

While plaintiffs contend that Delaware County’s decision to
require a full home study was based upon the Dennis’ maintaining their
innocence, plaintiffs have not provided evidence of that Delaware County
maintained a custom or policy of requiring full home studies for prospective
caretakers when those accused of abuse maintained their innocence. Rather, it
appears that Delaware County always requires a full home study for potential
care givers when the injuries were as severe as B.D.’s. (See Exhibit 29 to
Delaware County defendants’ summary judgment motion).
Moreover, while the Delaware County defendants concede that they
considered whether Mr. and Mrs. Dennis maintained their innocense as a factor
in assessing the suitability of the Stevensons for caretakers of B.D., in this
case, such a position does not “shock the conscience.” Under Pennsylvania
law, dependency proceedings are non-criminal proceedings in which the
presumption of innocense does not apply. Billups v. Penn State Milton S.
Hershey Medical Center, 2012 U.S.Dist. LEXIS 56414 at * 39 (M.D. April 23,
2012) citing C.S. v. Department of Public Welfare, 972 A.2d 1254, 1262
(Pa.Commw. 2009).
Because the Stevensons were close friends of Mr. and Mrs. Dennis,
CYS had an interest in investigating whether the Stevensons would abide by the
visitation restrictions placed on Mr. and Mrs. Dennis, which they might be
less likely to do if they believed that no abuse had occurred.

-59-

defendants were required to schedule a pre-deprivation hearing as
asserted in Count II-B.

See Miller, 174 F.3d at 372 n.4.

Additionally, even if a pre-deprivation hearing were
required, the individual defendants would be entitled to absolute
immunity.

See Ernst, 108 F.3d at 495, which held that child

welfare workers are also entitled to absolute immunity “for their
actions on behalf of the state in preparing for, initiating, and
prosecuting dependency proceedings.”81
Therefore, the Delaware County defendants’ motion for
summary judgment is granted with respect to Count II-B.
Counts III and IV
In Count III plaintiffs allege that Delaware County
and Mary Germond violated their rights to federal procedural due
process based on Ms. Germond’s failure to file a dependency
petition within 48-hours of the December 11, 2008 postdeprivation hearing.82

81

Even if the individual defendants were not entitled to absolute
immunity, they would be entitled to qualified immunity because, even if
plaintiffs due process rights were violated by the Delaware County defendants
failure to schedule a predeprivation hearing, such a right is not clearly
established. See MFS Inc., 771 F.Supp.2d at 449.
82
Pursuant to 23 Pa.C.S.A. § 6315, if CYS obtains continued custody
at an informal post-deprivation hearing, it has 48 hours to file a dependency
petition.

Once a dependency petition is filed, a dependency hearing must be
held within 10 days. 42 Pa.C.S.A. § 6335(a).

-60-

Similarly, Count IV asserts that Delaware County,
Patricia McGettigan, and Gina Giancristiforo violated plaintiffs’
federal procedural due process rights by failing to promptly
schedule the dependency hearing and by failing to timely provide
plaintiffs with discovery.
In this case, the right-to-detain hearing was held on
December 11, 2008.

However, contrary to the requirements of

23 Pa.C.S.A. § 6315, CYS did not file a dependency petition until
December 29, 2008.
Likewise, pursuant to 42 Pa.C.S.A. § 6335(a) a
dependency hearing is required to be held within 10 days
following the filing of the dependency petition.

In this case,

the dependency hearing was originally scheduled for January 13,
2009, more than 10 days after the dependency petition was filed.
Moreover, the dependency hearing did not ultimately commence
until April 22, 2009, nearly four months after the dependency
petition was filed.
However, although CYS failed to comply with
Pennsylvania law by failing to file the dependency petition
within 48 hours and failing to conduct a dependency hearing
within 10 days of the filing of the dependency petition,
plaintiffs have failed to establish that their procedural due
process rights were violated.

-61-

In order to prevail on their procedural due process
claims as alleged in Counts III and IV, plaintiffs must
demonstrate actual damages resulting from the delay in CYS’
failure to file the dependency petition.
291 F.3d 976, 985 (7th Cir. 2002).

Berman v. Young,

Accordingly, plaintiffs must

establish, “with some degree of probability,” that a timely
petition and hearing would have prevented the infringement on
their familial rights.

Id.

Here, plaintiffs have failed to establish that if CYS
promptly filed a dependency petition, the dependency hearing, and
ultimate adjudication, would have occurred any earlier.
Following the right-to-detain hearing on December 11,
2008, plaintiffs were notified that the dependency hearing was
scheduled for January 13, 2009.

Plaintiffs did not object to

holding the dependency hearing at that time. Additionally,
although the dependency petition was not filed within 48 hours of
the right-to-detain hearing, it was filed more than 10 days in
advance of the scheduled January 13, 2009 dependency hearing.
Therefore, plaintiffs had adequate notice of the allegations
leveled against them prior to the dependency hearing.
Plaintiffs requested a continuance of the January 13,
2009 hearing because Master McNulty had a conflict of interest.

-62-

Further, plaintiffs requested a continuance of the February 20,
2009 hearing because counsel for plaintiffs was unavailable.83
Plaintiffs have not explained how this delay is
attributable to Delaware County or the individual defendants.

In

fact, pursuant to 42 Pa.C.S.A., “the court shall fix a time for
hearing thereon, which if the child is in detention or shelter
care shall not be later than ten days after the filing of the
petition.”84
Therefore, the Court of Common Pleas is responsible for
scheduling the hearing within the designated time period.85

83

Exhibits 9 and 10 to Delaware County defendants’ summary judgment

motion.
84
Moreover, the court was ready to proceed with dependency hearing
on February 20, 2009, but rescheduled the hearing at both parties’ request.
85
At the February 20, 2009 hearing plaintiffs petitioned the court
for B.D.’s immediate release pursuant to 42 Pa.C.S.A. Judge Coll did not rule
on plaintiffs’ request because CYS agreed to place B.D. with the Stevensons,
which was acceptable to plaintiffs. (See Exhibit 15 to Delaware County
defendants’ summary judgment motion).

In this regard, because the issue was litigated in state court,
the Delaware County defendants contend that Count IV is barred by the RookerFeldman doctrine, which bars federal courts from sitting as appellate courts
for state court judgments.
However plaintiffs do not request a reversal of a state-court
order (as the Court of Common Pleas never ruled on plaintiffs’ request, and
plaintiffs were ultimately successful in seeking dismissal of the dependency
petition). Instead, plaintiffs are seeking damages based on the Delaware
County defendants’ purported delay in filing the dependency petition and
scheduling of the dependency hearing. This does not appear barred by the
Rooker-Feldman doctrine. See B.S. v. Somerset County, 704 F.3d 250, 260 (3d
Cir. 2013), which held that a mother’s action against a child services agency
was not barred by the Rooker-Feldman doctrine because her injury was traceable
to the actions of the child services agency rather than the state court.

-63-

Clearly, the delay resulting from plaintiffs’ request
for a continuance cannot constitute a procedural due process
violation of the Delaware County defendants.86
Plaintiffs contend that defendants failed to provide
discovery to plaintiffs in a timely manner prior to the
dependency hearing.

Specifically, plaintiffs contend that

defendants delayed submitting the expert reports of defendant
DeJong and Dr. Messam.

Plaintiffs contend that they were forced

to seek continuances of the dependency hearing because defendants
failed to provide these medical reports.
However, the Delaware County defendants provided
plaintiffs with the expert reports of defendant DeJong and
Dr. Messam more than 10 days in advance of the April 22, 1999

86
Moreover, even if plaintiffs had established that the delay in
filing the dependency petition delayed the ultimate adjudication of the
dependency proceedings, and B.D. would have been returned to plaintiffs’
earlier, plaintiffs’ due process claims would nevertheless fail.

Regarding Count III, as asserted against defendant Germond,
plaintiffs’ have failed to show defendant Germond was responsible for the
delay in filing the dependency petition. Although defendant Germond’s
signature appears on the dependency petition, it was signed on her behalf by
CYS’ legal department by non-party Beverly White. In fact, Ms. Germond had
nothing to do with the preparation of the dependency petition and nothing to
do with determining when it was filed. Therefore, even if plaintiffs had
established actual loss from the delay, their claim against defendant Germond
would nevertheless fail. (N.T. Germond, page 58)
Likewise, plaintiffs’ claim against Delaware County in Count III
would fail because they failed to establish that CYS’ failure to file the
dependency petition was part of an official custom of policy.

-64-

dependency hearing, which was all that was required by Judge
Coll.87
Even if the Delaware County defendants caused delay in
providing plaintiffs with discovery in the dependency
proceedings, plaintiffs’ claim would nevertheless fail.
Regarding plaintiffs’ claim against Delaware County, plaintiffs
have not established any evidence that Delaware County’s delay in
providing discovery was part of custom of policy.
Moreover, the individual defendants would be entitled
to absolute immunity because providing discovery during the
course of dependency proceedings is “intimately associated with
the judicial process in much the same way as are a prosecutor’s
actions in representing the state in criminal prosecutions.”
B.S. 704 F.3d at 266.
Therefore, plaintiffs have failed to establish that the
Delaware County defendants’ failure to timely file the dependency
petition, failure to promptly schedule the dependency hearing,
and failure to timely provide discovery, violated plaintiffs’
federal procedural due process rights.

87

See Exhibit 15 to Delaware County defendants’ summary judgment

motion.
Specifically, the Delaware County defendants provided plaintiffs
with Dr. DeJong’s expert report prior to the February 20, 2008 hearing. The
Delaware County defendants provided plaintiffs with Dr. Messam’s report on
April 8, 2009.

-65-

Therefore, the Delaware County defendants summary
judgment motion is granted with respect to Count III and IV.
Count V
In Count V, plaintiffs assert a substantive due process
claim against Delaware County based upon the refusal of CYS to
provide Mrs. Dennis with greater visitation rights with B.D.
The Third Circuit has held that “a state has no
interest in protecting children from their parents unless it has
some reasonable and articulable evidence giving rise to a
reasonable suspicion that a child has been abused or is in
imminent danger of abuse.”

Croft v. Westmoreland County of

Children and Youth Services, 103 F.3d 1123, 1126 (3d Cir. 1997).
Accordingly, the state must have an “objectively reasonable
suspicion of abuse” in order to justify interference with the
rights of parents.

Id.

Here, however Mrs. Dennis was accused of abusing B.D.
by failing to protect B.D. from Mr. Dennis.

Therefore, Delaware

County was justified in limiting the visitation rights of Mrs.
Dennis.

See B.S., 704 F.3d 268, which held that “the standard of

culpability necessary for a child welfare employee’s actions to
shock the conscience must generally exceed both negligence and
deliberate indifference”.

-66-

Plaintiffs have not submitted any evidence showing that
Delaware County and CYS employees limited Mrs. Dennis visitation
rights for malicious reasons.

In fact, at one point during the

course of the dependency proceedings Mrs. Dennis violated the
terms of her visitation schedule by engaging with B.D. in the
presence of Mrs. Stevenson, but unsupervised by CYS staff.88
Additionally, although Mrs. Dennis attended all
required parenting courses and was recognized for her parenting
skills, CYS did not obtain the report on Mrs. Dennis’
psychological evaluation until July 2009.

Therefore, before that

time CYS did not have all potentially relevant information when
considering whether to revise Mrs. Dennis’ visitation schedule.89
Finally, the fact that Mrs. Dennis maintained her
innocence is not an arbitrary or irrelevant factor for CYS to
consider in assessing the appropriate amount of visitation for
Mrs. Dennis.

Mrs. Dennis was accused of abuse by omission.

Therefore, her insistence that the injuries were not caused by
abuse could cause concern that Mrs. Dennis would not keep B.D.

88
Exhibit 32 to Delaware County defendants’ summary judgment
motion, Deposition of Beth Prodoel, October 22, 2012 (“N.T. Prodoel”), page
42.
89

N.T. Prodoel, page 57.

-67-

away from Mr. Dennis in the event CYS permitted Mrs. Dennis to
have unsupervised visitation.90
CYS was granted custody of B.D. pending the dependency
hearing and had the discretion to determine Mrs. Dennis’
visitation rights.

Plaintiffs have failed to establish that

limiting Mrs. Dennis’ visitation rights to weekly supervised
visits “shocks the conscience”.

Accordingly, the Delaware County

defendants’ summary judgment motion is granted with respect to
Count V.
Count VI
Plaintiffs concede that they did not produce sufficient
evidence to support their claim in Count VI.

Accordingly, Count

VI is dismissed from plaintiffs’ Amended Complaint with
prejudice.
Count VII
In Count VII plaintiffs have asserted a substantive due
process against Dr. DeJong based on purported misrepresentations
he made regarding his medical findings.91

Plaintiffs allege that

90
See Billups v. Penn State Milton S. Hershey Medical Center, 2012
U.S.Dist. LEXIS 56414 at * 39 (M.D. April 23, 2012) citing C.S. v. Department
of Public Welfare, 972 A.2d 1254, 1262 (Pa.Commw. 2009), in which the United
States District Court noted that under Pennsylvania law, dependency
proceedings are non-criminal proceedings in which the presumption of innocence
does not apply.
91
Plaintiffs also asserted a claim against Delaware County in Count
VII. However, plaintiffs acknowledge that there is insufficient evidence in
the record to support that claim. Accordingly, Count VII is dismissed from
plaintiffs’ Amended Complaint with prejudice.

-68-

Dr. DeJong misrepresented B.D.’s injuries to support false
allegations of child abuse.
However, plaintiffs substantive due process claim fails
because plaintiffs have not established that Dr. DeJong was
acting under the color of state law when he allegedly
misrepresented B.D.’s medical conditions.
In order for a private actor to be transformed into a
state actor, a court must consider “whether the function
performed has been traditionally the exclusive prerogative of the
State.”

Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct.

2764, 2772, 73 L.Ed.2d 418, 428 (1982)(internal quotations
omitted)(emphasis in original).
A function serving the public, and even receipt of
public funds, are not enough to make a private entity a state
actor.

Groman v. Township of Manalapan, 47 F.3d 628, 640

(3d Cir. 1995).

Rather, “the interdependence between the state

and private actor must be pronounced before the law will
transform the private actor into a state actor.”

Id. at 641.

Plaintiffs contend that Dr. DeJong is a state actor
because he serves as the medical director of the Child Advocacy
Center of Delaware (“CACD”) at duPont hospital.

CACD receives

substantial funding from the state of Delaware and “functions as
an agency and plays a pivotal and critical role in ensuring that

-69-

the state’s response to allegations of child abuse occurs as
intended.”92
However, Dr. DeJong did not advise CYS or law
enforcement personnel concerning the condition of B.D. as part of
his role as the medical director of CACD.
never referred to CACD.

In fact, B.D. was

Nor did CACD refer B.D. to Dr. DeJong.93

Instead, Dr. DeJong acted as a consulting physician,
pursuant to his duties as director of the Child at Risk
Evaluation (“CARE”) team at duPont hospital.

Plaintiffs have not

provided sufficient evidence that Dr. DeJong’s actions as an
employee of duPont hospital constitute actions under the color of
state law for purposes of § 1983.
Plaintiffs contend that defendant McGettigan’s request
that Dr. DeJong contact the police to encourage them to intervene
on behalf of B.D. converts him into a state actor for purposes of
section 1983.
However, plaintiffs have not produced any evidence that
Dr. DeJong’s actions or opinions concerning B.D. were dictated by
the state.

Accordingly, plaintiffs have failed to establish that

92
Exhibit 10 to plaintiffs’ response to defendant DeJong’s summary
judgment motion.
93

Exhibit A to defendant DeJong’s supplemental exhibits in support
of summary judgment motion, Declaration of Randall Williams.

-70-

Dr. DeJong acted under the color of state law.

See Groman,

47 F.3d at 641.94
Even if plaintiffs had established that Dr. DeJong
acted under the color of state law, their substantive due process
claim would nevertheless fail because plaintiffs have failed to
show that defendant DeJong’s conduct shocked the conscience.
Plaintiffs claim against Dr. DeJong is based on the
following misrepresentations he allegedly made to Officer James
Collins of the Chester County, Pennsylvania, Police Department
and CYS: (a) that B.D. was on a ventilator when admitted to
duPont hospital; (b) that B.D.’s rib fractures were two to four
weeks old (to correspond to his assertion that the red marks on
B.D. were traumatic bruises); (c) that B.D. had a significant
skull fracture; (d) the timing of B.D.’s subdural hematoma blood
collection (to falsely rule out birth trauma as a cause); and
(e) the statements Dr. DeJong attributed to Mrs. Dennis.

94

In Groman, a
to aid a man whom police
arrived and attempted to
the police a second time
47 F.3d at 641

volunteer first-aid squad responded to police calls
were taking into custody. The first-aid squad
treat the man at his home, and the squad responded to
to treat the man when he was at the police station.

The United States Court of Appeals for the Third Circuit held that
the first-aid squad was not a state actor for section 1983 purposes even
though it received public funds, it functioned to support the police, and it
responded twice to the request of the police to aid a man in police custody.
Id. at 642.
Because there was no evidence that the first-aid squad’s
professional decisions were dictated or guided by the state, or that the state
controlled the first-aid squad’s professional conduct in helping the man, the
first-aid squad was not a state actor. Id.

-71-

First, concerning Dr. DeJong’s alleged misrepresentation that B.D. was on a ventilator, the record reflects that
when B.D. was admitted to duPont Hospital for Children he
required assisted ventilation, even if he were not on a
traditional ventilator.

Moreoever, when B.D. underwent a CT scan

and MRI, he was placed on a ventilator.

Therefore, Dr. DeJong’s

assertion that B.D. was on a ventilator does not shock the
conscience.
Regarding Dr. DeJong’s alleged misrepresentations
concerning the age of B.D.’s bruised ribs, the existence of a
skull fracture and the timing of B.D.’s subdural hematoma blood
collection, plaintiffs have likewise failed to establish that Dr.
DeJong’s opinions on these matters shock the conscience.
While plaintiffs have provided expert opinions which
disagree with Dr. DeJong’s assessments concerning the extent,
duration and cause of B.D.’s injuries, plaintiffs have not
provided any evidence that Dr. DeJong’s opinions were negligent,
much less that they shocked the conscience.
A plaintiff alleging constitutional violations based on
inadequate or erroneous medical treatment must submit medical
evidence to support his or her claim.

See Anderson v. Folino,

2013 U.S.Dist. LEXIS 23193 at *25 (W.D.Pa. Jan. 23, 2013).

Here,

although plaintiffs have submitted medical evidence that Dr.
DeJong’s opinions regarding B.D. were possibly erroneous, without
-72-

an expert opinion that Dr. DeJong’s opinions were grossly
negligent, plaintiffs cannot succeed on their substantive due
process claim.

See Billups v. Penn State Milton S. Hershey, 2012

U.S.Dist. LEXIS 56414 at *25 (W.D.Pa. April 23, 2012).
Billups held that plaintiffs failed to state a claim
against the doctors who opined that a child had been abused
because “some reasonable and articulable evidence” existed giving
rise to a suspicion of abuse, and the “conscience-shocking
standard” requires a showing which exceeds “both negligence and
deliberate indifference.”

Id.

Multiple doctors opined that B.D.’s injuries resulted
from abuse.

These opinions, including Dr. DeJong’s, were based

on reasonable and articulable evidence.

Therefore, plaintiffs

have failed to establish that Dr. DeJong’s representations
concerning B.D.’s medical conditions shocked the conscience.
Finally, plaintiffs have failed to provide evidence
that Dr. DeJong misrepresented the conversation he had with Mrs.
Dennis.

In Dr. DeJong’s evaluation report of B.D., he indicates

that Mrs. Dennis told him that B.D. was well until November 20,
2008.

Dr. DeJong further reports that Mrs. Dennis told him that

around 7:00 o’clock p.m. on that date Mr. Dennis went upstairs
alone with B.D. and that B.D. suddenly stopped crying and that

-73-

when Mr. Dennis called her upstairs, B.D.’s arm was limp and
mouth was drooping.95
Mrs. Dennis does not dispute that she told Dr. DeJong
that B.D.’s arm went limp and that B.D.’s mouth was drooping.
However, she contends that she told him that she did not observe
those symptoms until later in the evening.96
However, even if Dr. DeJong inaccurately reported his
interview with Mrs. Dennis, the purported misrepresentations do
not shock the conscience.

Rather, even Mrs. Dennis acknowledged

that the purported inaccuracies within Dr. DeJong’s evaluation of
B.D. would not necessarily show malicious intent, but could have
occurred “if he’s not a good reporter.”97
Therefore, even if plaintiffs had established that Dr.
DeJong was acting under color of state law, Dr. DeJong would
nevertheless be entitled to summary judgment.

Accordingly, the

motion for summary judgment of defendant Dr. DeJong is granted
with respect to Count VII.

95

Exhibit 4 to defendant DeJong’s summary judgment motion.

96
Mrs. Dennis also identified purported misrepresentations made by
Dr. DeJong which do not appear material to his assessment that B.D. had been
abused. For example, Dr. DeJong described Mrs. Dennis’ labor as lasting 30
hours, when in fact it lasted 38 hours. (See N.T. Renee Dennis, page 167190). However, none of these purported inaccuracies shock the conscience.
97

N.T. Renee Dennis, page 190.

-74-

Count VIII
In Count VIII, plaintiffs assert a substantive due
process claim against Delaware County based on its failure to
train and supervise caseworkers, supervisors and administrators
regarding filing dependency petitions, scheduling dependency
trials and ex parte communications with the court.
In their opposition to Delaware County’s motion for
summary judgment, plaintiffs indicate that the focus of Count
VIII is Delaware County’s alleged failure train caseworkers,
supervisors and administrators to conduct a pre-deprivation
hearing when CYS seeks custody of a child in a non-emergency
situation.

Further, plaintiffs contend that Delaware County

failed to train CYS employees to file dependency petitions in a
timely manner.
However, as discussed above, initiating child custody
proceedings by ex parte order is generally constitutional so long
as a prompt post-deprivation hearing is held.
at 372 n.4.

Miller, 174 F.3d

Plaintiffs have not cited to any authority casting

doubt on the procedures set forth in the Child Protective
Services Law, 23 Pa.C.S.A. §§ 6301-6386, and the Juvenile Act,
42 Pa.C.S.A. §§ 6301-6375.98

98
Indeed, in Miller v. City of Philadelphia, 954 F.Supp. 1056, 1062
(E.D.Pa. 1997), the court noted that it would be “impracticable to require the
government to adopt special procedures” depending on whether a parent was
available to participate in the request for an emergency order.

-75-

Therefore, because a prompt post-deprivation hearing
was held, Delaware County is not liable for failing to train its
employees to conduct a pre-deprivation hearing when seeking a
protective custody order.99
Regarding plaintiffs’ contention that Delaware County
failed to properly train its employees to file timely dependency
petitions, plaintiffs have failed to establish that Delaware
County had a policy of encouraging dependency petitions to be
filed late.
In this case, the dependency petition was not filed
within the requisite 72 hours.

However, plaintiffs have not

established that such delay is commonplace or resulted from
inadequate training.
Defendant Germond acknowledges that, despite her
signature appearing on all dependency petitions, she does not
personally review the content of the petitions or have a role in
their filing.

However, plaintiffs have not produced any evidence

that the dependency petition filed on behalf of B.D., or any

99

Delaware County acknowledges that in most child abuse cases, it
seeks custody of the child through an ex parte request to a judge (N.T.
Germond, page 29). Moreover, Delaware acknowledges that it does not seek
custody of children while they’re in the hospital, but rather waits until the
child is to be released before seeking custody (N.T. Oral Argument, pages 5254).
Nothing in this Opinion should be construed as implying that
Delaware County cannot, or should not, conduct pre-deprivation hearings when
feasible. However, based on the law of this Circuit, they are not
constitutionally compelled to do so.

-76-

other dependency petition, was filed in an untimely manner
because of inadequate training or supervision.
Therefore, the motion for summary judgment of defendant
County of Delaware is granted with respect to Count VIII.
Count IX
Plaintiffs acknowledge that have not identified Dr. Doe
or uncovered any evidence supporting their Pennsylvania state-law
negligence claim against him.

Accordingly, on April 18, 2013 at

oral argument, plaintiffs withdrew this claim.

Therefore, in the

Order accompanying this Opinion I have formalized plaintiffs’
oral withdrawal of this claim by dismissing Count IX from
plaintiffs’ Amended Complaint with prejudice.
Count X
In Count X, plaintiffs allege a Pennsylvania state-law
claim for intentional infliction of emotional distress against
defendant Dr. DeJong.

Plaintiffs’ claim for intentional

infliction of emotion distress is based on the same purported
misrepresentations which provide the basis for plaintiffs’
substantive due process claim against Dr. DeJong, asserted in
Count VII.
Although the standard for a substantive due process
violation differs from intentional infliction of emotional
distress, in this case, the analysis is the same.

-77-

For the same

reasons Dr. DeJong’s alleged misrepresentations do not “shock the
conscience”, plaintiffs have failed to establish that Dr.
DeJong’s conduct was extreme and outrageous. See Breakwell v.
Allegheny County, 2009 U.S.Dist. LEXIS 91547 at *20 (W.D.Pa.
Aug. 24, 2009).
In Breakwell, the court concluded that allegations of
substantive due process which fail to “shock the conscience”,
likewise cannot be “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency” to
support an intentional infliction of emotional distress claim.
Id.
Therefore, defendant Dr. DeJong’s motion for summary
judgment is granted with respect to Count X.
CONCLUSION
For all of the forgoing reasons, the Delaware County
defendants’ motion for summary judgment is granted.
Dr. DeJong’s summary judgment motion is granted.

Likewise,

Accordingly,

all remaining claims are dismissed from plaintiffs’ Amended
Complaint.

Finally, plaintiffs’ motion for partial summary

judgment is denied.

-78-