MORT et al v. LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES et al
Filing
11
AMENDED COMPLAINT against All Defendants, filed by ELIZABETH MORT, ALEX RODRIGUEZ. (Attachments: # 1 Exhibit A, # 2 Summons) (Dodge, Patricia) Modified on 12/2/2010 to correct typo. (ksa)
MORT et al v. LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES et al
Doc. 11
859631.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ELIZABETH MORT and ALEX RODRIGUEZ,
Plaintiffs,
v.
) ) ) ) ) ) ) )
CIVIL ACTION NO. 2:10-cv-01438-DSC
LAWRENCE COUNTY CHILDREN )
AND YOUTH SERVICES; LAWRENCE)
Electronicallv Filed
COUNTY; CHRISSY MONTAGUE, )
Lawrence County Children and Youth )
Services Caseworker; and )
JAMESON HEALTH SYSTEM, INC. )
) )
Defendants. )
) )
JURY TRIL DEMANDED
AMENDED COMPLAINT
PRELIMINARY STATEMENT
i. A day after Elizabeth Mort and her fiancé, Alex Rodriguez, arrived home from
the hospital with their first child, Isabella, caseworkers from Lawrence County Children and
Youth Services ("CYS"), an agency which is operated, managed and supervised by Lawrence
County ("Lawrence County") (CYS and Lawrence County sometimes will be collectively
referred to as "LCCYS") and a police offcer arrived unannounced at their door with a court
order to remove their three-day-old infant. LCCYS took Isabella and held her in an undisclosed
location for five days until admitting that it had made a mistake. In the meantime, Mort and
Rodriguez, the plaintiffs in this case, were forced to experience the unthinkable: The forcible
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seizure of their infant daughter by the state without any justification and the fear that they might
not get her back.
2. Elizabeth Mort never imagined that the last thing she ate before giving birth to her
daughter - a poppy-seed bagel - would lead to the loss of her newborn, but that is exactly
what happened after Jameson Health System, Inc. ("Jameson") failed to account for the
possibility that her positive urine drug screen was due to her ingestion of poppy seeds, and
LCCYS, relying solely on Jameson's report of the positive prenatal drug test, took Mort's baby
into protective custody.
3. LCCYS caseworkers' decision to remove Isabella from her parents - based
solely on Jameson's erroneous report of Mort's positive prenatal drug test - was not an
unauthorized or even isolated act. In fact, Jameson has a policy of drug-testing all obstetrical
patients and then reporting any positive results to LCCYS. Pursuant to their custom, pattern,
practice and/or policy, LCCYS, in turn, takes immediate action to remove newborns from
parents whenever it receives a report of a positive prenatal drug test from Jameson.
4. The problem with this procedure is twofold: LCCYS is removing newborns
without any reasonable suspicion that they have been abused or are in imminent danger of abuse,
in violation of
parents' fundamental constitutional rights, and Jameson is aiding and abetting that
constitutional violation by carrying out a drug-testing regime, the primary purpose of which is to
further the goals ofLCCYS, not provide medical care to patients.
5. Plaintiffs Mort and Rodriguez have brought this civil rights lawsuit against
Defendants to stop CYS, Lawrence County and Jameson from continuing their unlawful practice
of violating the fundamental rights of parents to the care and custody of their children under
these circumstances.
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PARTIES
6. Plaintiff Elizabeth Mort is a citizen of the United States and is a resident of
Lawrence County in the Commonwealth of Pennsylvania. Plaintiff Mort is the natural mother
and legal guardian of newborn Isabella Rodriguez.
7. Plaintiff Alex Rodriguez is a citizen of the United States and is a resident of
Lawrence County in the Commonwealth of Pennsylvania. Plaintiff Rodriguez is the natural
father and legal guardian of newborn Isabella Rodriguez.
8. Plaintiffs are engaged to be married and at all times material hereto have resided
with Plaintiff
Mort'
s father, Richard C. Mort, in New Castle, Pennsylvania.
9. Defendant Lawrence County is a political subdivision of the Commonwealth of
Pennsylvania with its offces situated at 430 Court Street, New Castle, Pennsylvania 16101.
Defendant Lawrence County operates an agency or governmental unit known as Lawrence
County Children and Youth Services and is the direct policy-making entity which supervises and
manages the activities of
Defendant CYS.
10. Defendant CYS is a municipal government entity organized under the laws of
Pennsylvania, with its main offces located at 454 Chestnut Street, New Castle, Pennsylvania
16101.
11. LCCYS has a legal responsibility to operate according to the laws of the United
States and the Commonwealth of Pennsylvania, including, but not limited to, the United States
Constitution.
12. Defendant Chrissy Montague ("Montague") is, and at all relevant times here
mentioned was, a caseworker with LCCYS. In her capacity as an LCCYS caseworker,
Defendant Montague had a legal obligation to act in conformity with the U.S. Constitution and
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applicable federal and state laws. Defendant Montague is named herein in her individual
capacity. Defendant Montague is a "person," as that term is defined in 42 US.C. § 1983, and at
all relevant times has acted under color of state law.
13. Defendant Jameson Health System, Inc. is a private, not-for-profit community
health system that owns and operates the Jameson Hospital North Campus, which is located at
1211 Wilmington Road, New Castle, Pennsylvania 16105.
JURISDICTION AND VENUE
14. This Court has jurisdiction over this action pursuant to 28 US.C. §§ 1331,
1343(a)(3) and (4). Declaratory relief is authorized by 28 US.C. § 2201 and Federal Rule of
Civil Procedure 57. This Court has supplemental jurisdiction over Plaintiffs' state and common
law causes of
action under 28 US.C. § 1367.
15. This Court has personal jurisdiction over the Defendants, who are located in the
Western District of
Pennsylvania.
16. Venue is proper in the Western District of Pennsylvania pursuant to 28 US.C.
§ 1391(a) in that the Defendants are subject to personal jurisdiction within the Western District of Pennsylvania and the events that give rise to this action occurred within the Western District
of Pennsylvania.
FACTS
Jameson's Obstetrical Drug Testing Policy
17. Pursuant to a written policy ("Jameson's Policy"), Jameson requires all obstetrical
patients admitted to the maternity care center at Jameson's North Campus to undergo a urine
drug screen ("UDS") in order to identify those newborns with potential to demonstrate
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symptoms of drug withdrawal and to require special observation and treatment. (A true and
correct copy of Jameson'
s Policy is attached as Exhibit A)
law or regulation, and there are
18. This policy is not required by any state or federal
no national standards delineating specific criteria for drug-testing pregnant women. 19. According to Jameson's Policy, a UDS is considered positive for opiates if the
level of opiate metabolites detected in the urine is 300 nanograms/mL or above. After an initial
positive screen, Jameson's Policy requires that a confirmation test be performed.
20. If the initial UDS is positive for opiates, Jameson uses a confirmatory test to
confirm the result of the initial UDS and to determine which particular opiate is present, e.g.,
morphine or codeine. The UDS is considered a confirmed positive for morphine if the level
detected in the urine is 100 nanograms/mL or above.
21. The cut-off concentration levels used by Jameson to determine whether an initial
or confirmation prenatal drug test is positive for opiates and/or morphine are so low that they are
likely to produce "false positive" results; in fact, Jameson's cut-off levels are far lower than
those set by the federal government for federal workplace drug-testing programs.
22. In order to avoid "false positive" results caused by common foods and medicines,
federal guidelines set the "cut-off' concentration levels for drug tests used in federal workplace
drug-testing programs at 2000 nanograms/mL or higher in order for a UDS to be considered
positive for the presence of opiates or morphine.
23. If a mother's UDS is positive, Jameson's Policy requires a drug test be performed
on a newborn's urine and meconium (an infant's first stools).
24. Jameson's Policy requires the hospital's maternity care center staff to notify its
social service department whenever a maternity patient's initial UDS is positive.
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25. If the patient's confirmatory UDS is positive, Jameson's Policy specifically
requires that the hospital's social service department "then notify Children and Youth Services of
the positive confirmatory test result." (See Jameson's Policy, Exhibit A) (emphasis in originaL.)
26. Jameson's Policy also requires the hospital's social service department to notify
LCCYS when a maternity patient's initial drug test is positive, even before it has been
confirmed, if any of the following factors are present: prenatal history indicating prior drug use
or children in foster care; positive urine screen at any time in the pregnancy; physician suspect i.e., signs and symptoms upon admission, known methadone patient; unusual patient behavior; or
noncompliant prenatal care. (Id.)
27. Jameson's Policy of
reporting all maternity patients with confirmed positive drug-
test results to LCCYS is not required under any federal or state law or regulation.
28. Upon information and belief, Jameson's Policy of subjecting all obstetrical
patients to drug tests and informing LCCYS of positive results was created and carried out in
cooperation with LCCYS.
29. Upon information and belief, Jameson was aware that it was LCCYS's policy to
remove a newborn whenever Jameson disclosed to LCCYS that a prenatal drug test of the
infant's mother was positive.
30. Defendant Jameson is further involved with LCCYS through its affliation with
the Children's Advocacy Center of Lawrence County, which is located at Jameson Hospital
South Campus. The mission of the Children's Advocacy Center is to prevent the maltreatment of children by coordinating the efforts of diverse professionals who provide services related to
the prevention, education investigation, prosecution, and treatment of child abuse. To
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accomplish that mission, Jameson, through the Children's Advocacy Center, works with various
governmental entities, including LCCYS.
The Birth of Baby Rodriguez
31. Plaintiff Mort gave birth to a healthy, 7 lb 3 oz baby girl, Isabella Rodriguez
("Baby Rodriguez"), at 2: 14 p.m. on April
27, 2010 at Jameson Hospital's North Campus.
32. Prior to giving birth to Baby Rodriguez, Plaintiff
Mort had received necessary and
appropriate prenatal medical care.
33. Plaintiff
Mort did not use any illegal drugs while pregnant with Baby Rodriguez.
34. At approximately 3:00 p.m. on April 26, 2010, the day before Baby Rodriguez
was born, Plaintiff Mort consumed an "everything" bagel from Dunkin' Donuts containing,
among other things, poppy seeds.
35. Plaintiff Mort was admitted to Jameson's North Campus for labor and delivery
two hours later.
36. Shortly after admission, Plaintiff Mort voluntarily submitted a urine sample after
she was informed by a nurse at Jameson that she would be required to undergo a UDS in
conformity with Jameson's Policy.
37. No one at Jameson asked Plaintiff Mort whether she had eaten any foods that
could affect the test results, nor did anyone at Jameson advise Plaintiff
Mort that the ingestion of
the UDS.
certain foods, such as poppy seeds, could impact the results of
38. Due to the extremely low "cut-off' established by the Jameson Policy, the result
of Plaintiff Mort's initial UDS was positive for opiates because the concentration of opiate
metabolites in her urine was greater than 300 nanograms/mL.
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39. Jameson did not inform Plaintiff Mort that it considered her initial UDS to be
positive for the presence of opiates.
40. Plaintiff
Mort's obstetrician, Nicole Carlson, M.D. ("Dr. Carlson") was informed
of the positive UDS but did not inform Plaintiff Mort of the positive UDS because, in her
experience, many of
the initial UDS tests come back as "false positives."
41. In addition, Dr. Carlson did not inform Plaintiff Mort of the test results because
Plaintiff s urine tests throughout her pregnancy were negative for the presence of drugs; because
Dr. Carlson did not believe that the Plaintiff was a drug user; and because she did not want to
frighten Plaintiff during her labor/delivery.
42. In accordance with its Policy, Jameson performed a confirmatory test on Plaintiff
Mort's urine sample to confirm the initial UDS. The confirmation test indicated the presence of
morphine at a level of 501 nanograms/mL, a result well below the federal guidelines for a
positive drug test but entirely consistent with the amount of morphine expected to be found in a
urine sample within hours of eating poppy seeds.
43. The positive results on the initial and confirmatory drug tests were solely due to
Plaintiff Mort's ingestion of a bagel containing poppy seeds a few hours before providing the
urine sample and not to any illegal drug use by Plaintiff.
44. Upon information and belief, LCCYS did not investigate in any manner whether
Plaintiff Mort's positive drug test could be a "false positive" due to Plaintiff Mort's ingestion of
certain foods or medicines.
45. While neither Plaintiff Mort nor her obstetrician, Dr. Carlson were informed of
the confirmation test results, Jameson did inform LCCYS that Plaintiff Mort tested positive for
opiates.
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46. Upon information and belief, LCCYS did not ask for or receive from Jameson the
concentration levels of opiate metabolites or morphine detected in either Plaintiff Mort's initial
positive UDS or the positive confirmation test.
47. Upon information and belief, Jameson did not inform LCCYS that foods, such as
poppy seeds, could be responsible for the "false positive" result.
48. Baby Rodriguez was born healthy and the results of the drug tests performed on
her were negative.
49. Upon information and belief, Jameson, through its agents and employees, knew at
the time it informed LCCYS of Plaintiff Mort's positive test result that Baby Rodriguez neither
had been affected by illegal substance abuse nor had withdrawal symptoms resulting from
prenatal drug exposure.
50. Upon information and belief, Jameson and its agents and employees had no
reason to believe that Baby Rodriguez had been the victim of child abuse.
51. At no point before discharge was Plaintiff Mort informed of the allegedly positive
drug tests.
52. At no point before discharge was either Plaintiff Mort and/or Plaintiff Rodriguez
visited by anyone from Jameson's social services department or LCCYS and questioned about
drug use or their ability to care for their child.
The Removal of Baby Rodriguez by LCCYS
53. Plaintiff Mort and Baby Rodriguez were discharged from Jameson on Thursday,
April
29, 2010, and they returned to their residence.
54. The very next day, on April 30, 2010, LCCYS caseworker Chrissy Montague
orally petitioned the Court of Common Pleas of Lawrence County, Juvenile Division, for an ex
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parte order permitting LCCYS to take Baby Rodriguez into emergency protective custody solely
on the basis of Jameson's report to LCCYS that Plaintiff
Mort had tested positive for opiates.
55. In petitioning for the Order, LCCYS alleged, solely on the basis of Jameson's
report to LCCYS that Plaintiff Mort had tested positive for opiates, that Baby Rodriguez was
without proper parental care and that to allow her to remain in her home would be contrary to her
welfare because she had been exposed to drugs.
56. LCCYS did not interview Plaintiff Mort, Plaintiff Rodriguez, or any of their
family members prior to seeking and obtaining an emergency ex parte Order to remove Baby
Rodriguez from her parents' custody.
57. LCCYS made no effort to contact Plaintiff Mort's obstetrician, Dr. Carlson, nor
did they attempt to obtain copies of Plaintiff Mort's medical records, including the results of her
urine drug tests during her pregnancy, prior to seeking and obtaining an emergency ex parte
Order to remove Baby Rodriguez from her parents' custody.
58. In fact, aside from receiving the UDS test results from Jameson, LCCYS
conducted absolutely no investigation of Plaintiff Mort or Plaintiff Rodriguez prior to alleging
that Baby Rodriguez was without proper parental care or seeking an emergency ex parte Order to
remove Baby Rodriguez from her parents' custody.
59. No services were offered by LCCYS to prevent removal of the child from the
home.
60. Based upon the allegations of Montague, the Court of
Common Pleas issued an ex
parte Order allowing LCCYS to take Baby Rodriguez into custody.
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61. After obtaining the Order, two LCCYS caseworkers and two police offcers from
the Neshannock Township Police Department arrived at the Plaintiffs' residence on Friday, April
30,2010, at approximately 3:00 p.m. Both Plaintiffs were present at their residence at the time.
62. It was at that point that Plaintiffs learned for the first time that LCCYS had sought
and obtained an ex parte court order to remove their newborn baby.
63. Over Plaintiffs' protests and Plaintiff
Mort's adamant denial of drug use, LCCYS
informed Plaintiffs that they were removing three-day-old Baby Rodriguez from their home and
placing her in foster care because Jameson had reported that Plaintiff Mort's drug test results
were positive for opiates.
64. During the fifteen minutes that the caseworkers and police offcers were at the
Plaintiffs' home, they did not interview Plaintiffs Mort or Rodriguez or inspect the home.
65. At the request of one of the police offcers, Plaintiff Rodriguez took the offcer to
the Plaintiffs' room, where Baby Rodriguez was sleeping in a bassinette and then brought her to
the living room, where the LCCYS caseworkers were waiting.
66. During the time when they were in Plaintiffs' home, neither of the LCCYS
caseworkers ever left Plaintiffs' living room, conducted any investigation or viewed Baby
Rodriguez's room, which contained all of
the necessary items for a newborn baby, including a
crib, changing table, diapers, toys, blankets, and clothing.
67. The caseworkers then took Baby Rodriguez into protective custody and refused to
tell the Plaintiffs where they were taking her other than that she would be placed in foster care
and left the Plaintiffs' home.
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68. Although the Plaintiffs knew that they had not done anything to harm their baby
and knew that the drug-test results were in error, they complied with the directions of the police
offcers and caseworkers because they did not want to make the situation worse.
69. Plaintiff Mort's father, Richard Mort ("Mr. Mort"), immediately returned home
from work upon learning that LCCYS had taken his granddaughter into state custody.
70. On Plaintiffs' behalf, Mr. Mort contacted LCCYS and Jameson to try to learn
more details about the reasons for taking Baby Rodriguez, but was only told that he should
contact an attorney.
71. Mr. Mort then contacted an attorney, who explained that Plaintiff Mort was
entitled to a hearing regarding the removal of Baby Rodriguez within 72 hours but that nothing
could be done over the weekend.
72. After conducting his own investigation into the possible causes of his daughter's
positive drug test, Mr. Mort suspected that Plaintiff Mort's UDS had been positive for opiates
because of the poppy seeds on the "everything" bagel she ate from Dunkin' Donuts on the
afternoon of April
26, 2010, two hours before being admitted to Jameson for labor and delivery.
73. Shortly after the LCCYS caseworkers took custody of Baby Rodriguez, Plaintiff
Mort contacted her obstetrician, Dr. Carlson, to request that Dr. Carlson order a UDS. No one
from Jameson or LCCYS had contacted Dr. Carlson to obtain any information or to inform Dr.
Carlson that the confirmation test on Plaintiff Mort'
s UDS showed a positive result.
74. Two hours after Baby Rodriguez was taken from Plaintiffs' home without prior
notice, Plaintiff Mort provided another urine sample at Jameson for a UDS, the results of which
were negative for all illegal drugs.
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75. LCCYS failed to contact the Plaintiffs or perform any investigation of their
allegations prior to the informal hearing that was scheduled for Monday, May 3, 2010 at
1 :30 p.m. to determine whether Baby Rodriguez's placement in shelter care was necessary.
76. Plaintiffs and Mr. Mort arrived at the court for the informal hearing on May 3,
2010.
77. After they arrived, a lawyer appointed by the court for Plaintiff Rodriguez
explained to him that the court would give custody of Baby Rodriguez to him only if he lived
apart from Plaintiff Mort and that he would be required to undergo drug testing as a condition of
having custody of his child.
78. Plaintiff
Mort and her father met with a lawyer appointed by the court to represent
Plaintiff Mort. After Plaintiff Mort advised him that she had not used any illegal drugs while she
was pregnant and that she believed that her positive drug test was due to her ingestion of poppy
seeds on a bagel that she had eaten shortly before she was admitted to Jameson, he arranged for
Plaintiff Mort and her father to meet with LCCYS caseworker Montague.
79. Plaintiff Mort and her father then advised Montague of their belief that the
positive drug test was due to Plaintiff Mort's ingestion of the poppy-seed bagel and the
extremely low "cut-off' levels that Jameson uses to determine whether a drug test is positive for
opiates.
80. Montague appeared to believe that Plaintiff Mort's drug test result represented a
"false positive" and in fact, admitted to Plaintiff Mort and her father that LCCYS had
experienced problems with Jameson in the past and that LCCYS had made a mistake by
removing Baby Rodriguez from Plaintiffs' custody.
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81. At that point, the Plaintiffs believed that LCCYS would not contest the return of
Baby Rodriguez to them at the informal hearing and that she would be returned to them that day.
82. After speaking with the LCCYS solicitor and the lawyers appointed to represent
the Plaintiffs outside of the Plaintiffs' presence, Juvenile Court Master Susan Papa refused, for
reasons unknown to Plaintiffs, to hold the informal hearing on May 3, 2010 and rescheduled it
for May 6, 2010 at 1:30 p.m., well beyond the statutory requirement that an informal hearing be
held within 72 hours of a child's placement in shelter care.
83. Despite its admission that it had made a mistake in removing her from Plaintiffs'
home, LCCYS inexplicably refused to immediately return Baby Rodriguez to the Plaintiffs.
Instead, Montague informed the Plaintiffs that their baby would remain in an undisclosed foster
home and that they would only be allowed to visit their baby the next day at the LCCYS offce.
84. The next morning, Plaintiffs arrived at the LCCYS offce to visit their baby. This
was the first time Plaintiffs had seen Baby Rodriguez since she was taken from them four days
before.
85. Plaintiffs learned of the negative result from Plaintiff
Mort's April 30, 2010 UDS
while they were at the LCCYS offce and informed Montague of the result. Although Montague
acknowledged the negative result and appeared to believe Plaintiffs' assertion that the positive
result from the April
26, 2010 UDS was due to the poppy-seed bagel, LCCYS did not permit the
Plaintiffs to take Baby Rodriguez home with them on May 4,2010.
86. On Wednesday, May 5, 2010, LCCYS contacted Plaintiffs and informed them of
its intent to fie a motion to dismiss the dependency petition and that Baby Rodriguez would be
returned to their custody. Montague delivered Baby Rodriguez to the Plaintiffs' home on May 5,
2010 at approximately 1:00 p.m.
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87. On May 6,2010, LCCYS fied a Motion to Dismiss the Dependency Petition with
the Court in which they stated that "(a)fter further investigation, there is no evidence to support
illegal drug use by the natural mother, Elizabeth Mort."
88. On May 10, 2010, the Court granted the Motion to Dismiss the Dependency
Petition.
LCCYS's Policy of
Removing Newborns Based Solely on the Report of a Positive Prenatal Drug Test
89. Upon information and belief, Montague's oral ex parte petition to the Juvenile
Court requesting that LCCYS be permitted to take into protective custody and detain Baby
Rodriguez was made pursuant to a custom, pattern, practice and/or policy of LCCYS that
requires caseworkers to seek court orders to take infants into protective custody based solely on a
report from a hospital or other medical professional that the infant's mother tested positive for
use of an illicit substance while pregnant.
90. Upon information and belief, LCCYS, by virtue of their custom, pattern, practice
and/or policy, authorizes its caseworkers to seek to take infants into protective custody based
solely on a report from a hospital or other medical professional that the infant's mother tested
positive for use of an illicit substance while pregnant and without a reasonable suspicion that the
infant has been abused or is in imminent danger of abuse.
91. Upon information and belief, LCCYS failed to adequately train their caseworkers,
which represents deliberate indifference to the risk that parents' substantive due-process rights
will be violated when caseworkers seek to take infants into protective custody based solely on a
report from a hospital or other medical professional that the infant's mother tested positive for
use of an illicit substance while pregnant.
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92. Plaintiffs are aware, through their counsel, of at least one other instance in which
an infant was taken into protective custody based solely on a report from Jameson that the
infant's mother tested positive for use of an illicit substance while pregnant.
93. Plaintiffs' counsel have also been informed by lawyers representing parents in
dependency proceedings in Lawrence County that LCCYS has a custom, pattern, practice and/or
policy of seeking court orders to take infants into protective custody based solely on a report
from a hospital or other medical professional that the infant's mother tested positive for the use
of an illicit substance while pregnant.
COUNT I FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS: PARENTS' RIGHT TO THE CARE AND CUSTODY OF THEIR CHILDREN (Plaintiffs Mort and Rodriguez vs. Defendants CYS, Lawrence County and Montague)
94. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as
though set forth at length herein.
95. LCCYS's custom, policy, or practice under which they seek to remove newborn
children from their parents based solely upon a report from a hospital or other medical
professional of a positive prenatal drug test of the child's mother, and without any further
investigation into family circumstances whatsoever ("LCCYS Policy"), violates the Fourteenth
Amendment right of parents to substantive due process on its face and as applied to Plaintiffs
because it infringes on the fundamental liberty interest of parents to the custody, care, and
control of their children.
96. By adopting, implementing, and enforcing the LCCYS Policy and removing Baby
Rodriguez from their care and placing her into protective custody, CYS, Lawrence County and
Montague violated Plaintiffs' Fourteenth Amendment right to substantive due process because
CYS, Lawrence County and Montague infringed upon Plaintiffs' fundamental
liberty interest in
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the custody, care, and control of their child without any objectively reasonable suspicion that
Baby Rodriguez had been abused or was in imminent danger of abuse.
97. Defendants CYS, Lawrence County and Montague violated Plaintiffs' Fourteenth
Amendment right to substantive due process by failing to immediately return Baby Rodriguez to
Plaintiffs' custody upon realizing that there was no evidence to support illegal drug use by Plaintiff Mort.
98. As a direct consequence of the actions of
Defendants CYS, Lawrence County and
Montague, including the existence and enforcement of LCCYS' s unconstitutional custom,
policy, or practice and actions thereunder, Plaintiffs were separated from their newborn child for
five days.
99. Plaintiffs have suffered substantial harm as a result of the existence and
enforcement of LCCYS' s custom, policy, or practice, including but not limited to, emotional and
psychological pain and suffering and injury to their reputation.
COUNT II CONSPIRACY TO VIOLATE PLAINTIFFS' FOURTEENTH AMENDMENT RIGHTS (Plaintiffs Mort and Rodriguez vs. Defendants Jameson, CYS and Lawrence County)
100. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as
though set forth at length herein.
101. Upon information and belief, Defendants Jameson, CYS and Lawrence County
entered into a combination, agreement, or understanding to violate Plaintiffs' constitutional
rights under the Fourteenth Amendment by carrying out, through Jameson, a policy of drug-
testing all obstetrical patients, which resulted in the removal of Plaintiffs' child from their
custody without reasonable suspicion that she had been abused or was in imminent danger of
abuse.
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102. In furtherance of this combination, agreement, or understanding, Jameson's
Policy specifically requires that the hospital's social service department "notify Children and
Youth Services of the positive confirmatory test result." (See Jameson's Policy, Exhibit A)
(emphasis in originaL.)
103. Also in furtherance of this combination, agreement, or understanding, Jameson's
Policy also requires the hospital's social service department to notify LCCYS when a maternity
patient's initial drug test is positive, even before it has been confirmed, under certain
circumstances. (Id.)
104. Defendants Jameson, CYS and Lawrence County each acted in furtherance of said
agreement, combination, or understanding by cooperating in the development of Jameson's
obstetrical drug-testing policy, carrying out a drug test of Plaintiff Mort, and taking Plaintiffs'
baby into state custody.
105. The aforementioned conspiracy violates 42 US.C. § 1983.
106. Defendants' actions violated Plaintiffs' clearly established rights.
107. Defendants CYS, Lawrence County and Jameson acted intentionally to deprive
Plaintiffs of their constitutional rights under the Fourteenth Amendment, or in wanton, reckless
disregard of those rights.
108. Defendants' actions constituted an extreme departure from the ordinary standard
of care and evidences a conscious indifference to Plaintiffs' constitutional rights under the
Fourteenth Amendment.
109. Plaintiffs have suffered substantial harm as a result of Defendants' conduct,
including but not limited to, emotional and psychological pain and suffering and injury to their
reputation.
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COUNT III NEGLIGENCE (Plaintiff Mort vs. Defendant Jameson)
11 O. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as
though set forth at length herein.
1 1 1. In admitting and treating Plaintiff Mort as a patient and performing a drug
screening of her, Jameson owed Plaintiff Mort a duty to use reasonable care to process and test
Plaintiffs urine sample in a scientifically reasonable manner to avoid incorrect and/or "false
positive" results.
112. Jameson breached its duty of care and was negligent in the following respects:
a. In setting "cut-off' levels for opiates at an arbitrary and unreliably low level
such that they are likely to produce incorrect and/or "false positive" results;
b. In failing to conduct scientific or medical studies and/or utilize accepted
standards of laboratory practice to determine an appropriate "cut-off' level;
c. In improperly setting an unreasonable "cut-off' level;
d. In failing to utilize "cut-off' levels, screening and/or testing procedures that
would account for or reveal the likely effect of consuming food such as
poppy seeds prior to testing;
e. In failing to use all due care in the implementation and setting of
the Jameson
Policy and "cut-off' levels utilized in the Jameson Policy;
f. In interpreting and reporting Plaintiff Mort's urine testing based on "cut-off'
levels that were scientifically unsound and unreliable markers for detecting the prohibited activity of opiates;
g. In failing to exclude other causes for positive test results;
h. In failing to use all due care in the interpretation and reporting of Plaintiff
Mort's urine screening;
1. In interpreting and reporting the results of Plaintiff Mort's urine screening at
the arbitrarily set "cut-off' level as sole proof that Plaintiff Mort abused
opiates;
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J. In failing to warn Plaintiff Mort that her test results could be affected by the
consumption of food such as poppy seeds;
k. In failing to determine if Plaintiff Mort had consumed a food product such as
poppy seeds prior to testing; and
i. In failing to inform Plaintiff Mort of her test results and/or that her test results were or could be the result of her consumption of poppy seeds.
113. As a direct and proximate result of the above negligence of Jameson, Plaintiff
Mort suffered harm, including but not limited to, emotional and psychological pain and suffering
and injury to her reputation.
COUNT iv FALSE LIGHT INVASION OF PRIVACY (Plaintiff Mort vs. Defendant Jameson)
11 4. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as
though set forth at length herein.
115. Jameson publicized the results of Plaintiff
Mort's drug test to LCCYS as positive
for opiates when in fact it was a "false positive" result.
116. By incorrectly reporting to LCCYS the results of Plaintiff Mort's drug test as a
positive result for opiates, Jameson placed Plaintiff
Mort in a false light.
11 7. The false light in which Jameson placed Plaintiff Mort would be highly offensive
to a reasonable person.
118. Jameson had knowledge of or acted in reckless disregard as to the false
characterization of the positive drug test result and the false light in which it was placing Plaintiff
Mort.
1 19. Plaintiff Mort suffered harm as a direct result of the actions of Jameson, including
but not limited to, emotional and psychological pain and suffering and injury to her reputation.
20
859631.
PRAYER FOR RELIEF
WHREFORE, in light of
the foregoing, Plaintiffs respectfully request the following:
(a) a declaratory judgment pursuant to 28 US.C. §§ 2201 and 2202 and 42 US.C.
§ 1983 declaring the policy adopted and enforced by LCCYS to remove newborn
children from their parents based solely upon a single positive drug test without
any individualized suspicion of abuse or likelihood of abuse to be unconstitutional
because it violates the Fourteenth Amendment right to substantive due process;
(b) nominal, compensatory, and punitive damages in an amount to be proven at trial;
(c) an order awarding Plaintiffs the costs incurred in this litigation including
attorney's fees pursuant to 42 US.C. § 1988; and
(d) such other relief as the Court deems just and proper.
JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiffs demand a jury on
all issues so triable.
21
859631.
Respectfully submitted,
/s/ Sara 1. Rose Witold 1. Walczak PA ID No.: 62976
Sara 1. Rose
PA ID No.: 204936
AMRICAN CIVIL LIBERTIES FOUNATION
OF PENNSYLVANIA
3 13 Atwood Street
Pittsburgh, PAl 5213
(412) 681-7864 vwalczak(£aclupgh.org srose(£aclupgh.org
MEYER, UNOVIC & SCOTT, LLP
/s/ Patricia L. Dodge Patricia L. Dodge PA ID No.: 35393 Quinn A. Johnson PA ID No.: 91161
Antoinette C. Oliver
PA ID No.: 206148
535 Smithfield Street Suite 1300
Pittsburgh, PAl 5222
(412) 456-2800 pld(£muslaw.com qaj com (£muslaw. aco(£muslaw. com
Counsel for Plaintiffs
December lsI, 2010
22
859631.
CERTIFICA TE OF SERVICE
I, Patricia L. Dodge, hereby certify that on this 18t day of December, 2010, a true and
correct copy of
the foregoing document was fied electronically using the Court's ECF/electronic
mailing system, which will automatically send e-mail notification of such fiing to the following
attorneys of record:
(Counsel
John C. Conti, Esquire Richard 1. Kabbert, Esquire Dickie, McCamey & Chilcote Two PPG Place, Suite 400 Pittsburgh, PAl 5222-5402 for Defendant Jameson Health System, Inc.)
Marie Milie Jones, Esquire MEYER, DARAGH, BUCKLER,BEBENEK & ECK, P.L.L.C. US. Steel Tower, Suite 4850 600 Grant Street
Pittsburgh, PAl 52 1 9
(Counsel for Defendants Lawrence County Children and Youth Services and Chrissy Montague)
/s/ Patricia L. Dodge
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