MORT et al v. LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES et al

Filing 51

MOTION for Leave to File Second Amended Complaint by ELIZABETH MORT, ALEX RODRIGUEZ. (Attachments: # 1 Exhibit 1, # 2 Proposed Order) (Dodge, Patricia)

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901500.2

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ELIZABETH MORT and ALEX
RODRIGUEZ,
Plaintiffs,

CIVIL ACTION NO.2:10-cv-01438-DSC

►~
LAWRENCE COUNTY CHILDREN
AND YOUTH SERVICES;
LAWRENCE COUNTY; JANE GAJDA,
Lawrence County Children and Youth
Services Director; SANDY COPPER,
Lawrence County Children and Youth
Services Supervisor; CHRISSY
MONTAGUE, Lawrence County
Children and Yonth Services
caseworker; and JAMESON HEALTH
SYSTEM, INC.,
Defendants.

Electronically Filed

JURY TRIAL DEMANDED

SECOND AMENDED COMPLAINT
PRELIMINARY STATEMENT
1.

A day after Elizabeth Mort and her fiance, 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 officer 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

901500.2

Rodriguez, the plaintiffs in this case, were forced to experience the unthinkable: The forcible
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 the 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 adrug-testing regime, the primary purpose of which is to
further tl~e goals of LCCYS, not provide medical care to patients.
S.

Plaintiffs Mort and Rodriguez have brought this civil rights lawsuit against

Defendants to stop CYS, Lawrence County and Jameson from continuing their unlawful practice

901500.2

of violating the fundamental rights of parents to the care and custody of their children under
these circumstances.
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 offices 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 goverrunent entity organized under the laws of

Pennsylvania, with its main offices 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..

9015002

12.

Defendant Jane Gajda is, and at all relevant times here mentioned was, the

director of LCCYS. As director, she is responsible for implementing and approving LCCYS'
policies and practices.

In her capacity as LCCYS director, Defendant Gajda had a legal

obligation to act in conformity with the U.S. Constitution and applicable federal and state laws.
Defendant Gajda is named herein in her individual capacity. Defendant Gajda is a "person," as
that term is defined in 42 U.S.C. § 1983, and at all relevant times has acted under color of state
law.
13.

Defendant Sandy Copper is, and at all relevant times here mentioned was, the

intake supervisor for LCCYS. In her capacity as an LCCYS supervisor, Defendant Copper had a
legal obligation to act in conformity with the U.S. Constitution and applicable federal and state
laws. Defendant Copper is mined herein in her individual capacity. Defendant Copper is a
"person," as that teen is defined in 42 U.S.C. § 1983, and at all. relevant times has acted under
color of state law.
14.

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
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 U.S.C. § 1983, and at
all relevant times has acted under color of state law.
15.

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.

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JURISDICTION AND VENUE
16.

This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331,

1343(a)(3) and (4). Declaratory relief is authorized by 28 U.S.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 U.S.C. § 1367.
17.

This Court has personal jurisdiction over the Defendants, who are located in the

Western District of Pennsylvania.
18.

Venue is proper in the Western District of Pennsylvania pursuant to 28 U.S.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
19.

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
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.)
20.

This policy is not required by any state or federal law or regulation, and there are

no national standards delineating specific criteria for drug-testing pregnant women.
21.

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.

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22.

Tf 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.
23.

The cut-off concentration levels used by Jameson to determine whether an initial

ox 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.
24.

In order to avoid false positive results caused. by common foods and medicines,

federal guidelines set the "cut-ofd' concentration levels for drug tests used in federal workplace
drug-testing programs at 2000 nanog~ams/mL or higher in order far a UDS to be considered
positive for the presence of opiates or morphine.
25.

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).
26.

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.
27.

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 confij~matory test result." (See Jameson's Policy, Exhibit A) {emphasis in original.)
28.

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 is present: prenatal history indicating prior drug use or
children in foster care; positive urine screen at any time in the pregnancy; physician suspect —

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i.e,, signs and symptoms upon admission, known methadone patient; unusual. patient behavior; or
noncompliant prenatal care. (Id.)
29.

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.
30.

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.
31.

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.
32.

Defendant Jameson is further involved with LCCYS through its affiliation 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

accomplish that mission, Jameson, through the Children's Advocacy Center, works with various
governmental entities, including LCCYS.
The Birth of Baby Rodriguez
33.

Plaintiff Mort gave birth to a healthy, 7 lb 3 oz baby girl, Isabella Rodriguez

{"Baby Rodriguez"), at 2:14 p.m. on Apri127, 2010 at Jameson Hospital's North Campus.
34.

Prior to giving birth to Baby Rodriguez, Plaintiff Mort had received necessary and

appropriate prenatal medical care.
35.

Plaintiff Mort did not use any illegal dz-ugs while pregnant with Baby Rodriguez.

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36.

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.
37.

Plaintiff Mort was admitted to Jameson's North Campus for labor and delivery

two hours later.
38.

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.
39.

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
certain foods, such as poppy seeds, could impact the results of the UDS.
40.

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.
41.

Jameson did not inform Plaintiff Mort that it considered her initial UDS to be

positive for the presence of opiates.
42.

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."
43.

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.

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44.

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.
45.

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.
46.

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.
47.

While neither Plaintiff Mort nor her obstetrician, Dr. Carlson were informed of

the confirmation test results, Jameson did inform LCCYS intake supervisor Sandy Copper that
Plaintiff Mort tested positive for opiates.
48.

Upon information and belief, Defendant Copper 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.
49.

Upon information and belief, Jameson did not inform LCCYS that foods, such as

poppy seeds, could be responsible for the false positive result.
50.

Baby Rodriguez was born healthy and the results of the drug tests performed on

her were negative.
51.

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

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had been. affected by illegal substance abuse nor had withdrawal symptoms resulting from
prenatal drug exposure.
52.

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.
53.

At no point before discharge was Plaintiff Mort informed of the allegedly positive

drug tests.
54.

At no point before discharge was either Plaintiff Mort andlor 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
55.

Plaintiff Mort and Baby Rodriguez were discharged from Jameson on Thursday,

Apri129, 2010, and they returned to their residence.
56.

The very next day, on April 30, 2010, LCCYS intake supervisor Sandy Copper

instructed LCCYS caseworker Chrissy Montague to seek a court order permitting LCCYS to
take Baby Rodriguez into emergency protective custody solely on the basis of Jameson's report
to Defendant Copper that Plaintiff Mort had tested positive for opiates.

Common Pleas of Lawrence County, Juvenile Division, for an

pane

Defendant Montague immediately submitted. an oral petition to the Court of
ex

57.

order pernlitting LCCYS

to take Baby Rodriguez into emergency protective custody solely on the basis of Jameson's
report that Plaintiff Mort had tested positive for opiates.
58.

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

10

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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.

family members prior to seeking and obtaining an emergency

ex

LCCYS did not interview Plaintiff Mort, Plaintiff Rodriguez, or any of their
parte

59.

Order to remove Baby

Rodriguez from her parents' custody.
b0.

LCCYS made no effort to contact Plaintiff Mort's obstetrician, Dr. Carlson, nor

pane

urine drug tests during her pregnancy, prior to seeking and obtaining an emergency

ex

did it attempt to obtain copies of Plaintiff Mort's medical records, including the results of her

Order to remove Baby Rodriguez from her parents' custody.
61.

In fact, aside from receiving the UDS test results from Jameson, LCCYS

pane

that Baby Rodriguez was without proper parental care or seeking an emergency

ex

conducted absolutely no investigation of Plaintiff Mort or Plaintiff Rodriguez prior to alleging
Order to

remove Baby Rodriguez from her parents' custody.
62.

No services were offered by LCCYS to prevent removal of the child from the

63.

Based upon the allegations of Montague, the Court of Common Pleas issued an

pane

ex

home.

Order allowing LCCYS to take Baby Rodriguez into custody.
64.

After obtaining the Order, two LCCYS caseworkers and two police officers 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.

and obtained an

ex

It was at that point that Plaintiffs learned for the first tune that LCCYS had sought
parse

65.

court order to remove their newborn baby.

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66.

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.
67.

During the fifteen minutes that the caseworkers and police officer were at the

Plaintiffs' home, they did not interview Plaintiffs Mort or Rodriguez or inspect the home.
68.

At the request of one of the police officers, Plaintiff Rodriguez took the officer 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.
69.

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 far a newborn baby, including a
crib, changing table, diapers, toys, blankets, and clothing.
70.

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.
71.

Although the Plaintiffs knew that they had not done anything to harnl their baby

and knew that the drug-test results were in error, they complied with the directions of the police
officers and caseworkers because they did not want to make the situation worse.
72.

Plaintiff Mort's father, Richard Mort ("Mr. Mort"), immediately returned home

froze work upon learning that LCCYS had taken his granddaughter into state custody.

12

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73.

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.
74.

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.
75.

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 Apri126, 2010, two hours before being admitted to Jameson for labor and delivery.
76.

Shortly after the LCCYS caseworkers took custody of Baby Rodriguez, Plaintiff

Mart contacted her obstetrician, Dr. Carlson, to request that Dr. Carlson order a UDS. No one
froth 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.
77.

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.
78.

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.
79.

Plaintiffs and Mr. Mort arrived at the court for the informal hearing on May 3,

13

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80.

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.
81.

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.
82.

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.
83.

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.
84.

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.
85.

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

14

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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.
86.

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 office.
87.

The next morning, Plaintiffs arrived at the LCCYS office to visit their baby. This

was the first time Plaintiffs had seen Baby Rodriguez since she was taken from them four days
before.
88.

Plaintiffs lear~7ed of the negative result from Plaintiff Mort's April 30, 2010 UDS

while they were at the LCCYS office and informed Montague of the result. Although Montague
acknowledged the negative result and appeared to believe Plaintiffs' assertion that the positive
result from the Apri126, 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.
89.

On Wednesday, May 5, 2010, LCCYS contacted Plaintiffs and informed them of

its intent to file 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.
90.

On May 6, 2010, LCCYS filed a Motion. to Dismiss the Dependency Petition with

the Court in which it stated that "[a]fter further investigation, there is no evidence to support
illegal drug use by the natural mother, Elizabeth Mort."
91.

On May 10, 2010, the Court granted the Motion to Dismiss the Dependency

Petition.

15

901.500.2

Upon information and belief, Montague's oral

parte

92.

ex

LCCYS's Policy of Removing Newborns Based Solely
on the Report of a Positive Prenatal Drug Test
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.
93.

Upon information and belief, LCCYS, by virtue of its 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.
94.

Upon information and belief, LCCYS failed to adequately train its 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.
95.

Upon information and belief, Defendant Gajda, as director of LCCYS, adopted,

implemented, and/or enforced LCCYS' custom, pattern, practice andlor policy requiring
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.

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901X00.2

96.

Plaintiffs are awaxe, 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.
97.

Plaintiffs' counsel have also been informed by lawyers representing parents in

dependency proceedings in Lawrence County that LCCYS has a custom, pattern, practice andlor
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.
COUNTI
FOURTEENTH AMENDMENT' SUBSTANTIVE DUE PROCESS:
PARENTS' RIGHT TO THE CARE AND CUSTODY OF THEIR CHILDREN
(Plaintiffs Mort and Rodriguez vs. Defendants CYS, La~~rence County, Gajda, Copper
and Montague)
98.

Plaintiffs incorporate by reference the allegations of the preceding paragraphs as

though set forth at length herein.
99.

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.
1.00.

By adopting, implennenting, and enforcing the LCCYS Policy and removing Baby

Rodriguez from their care and placing her into protective custody, CYS, Lawrence County,
Gajda, Copper and Montague violated Plaintiffs' Fourteenth Amendment right to substantive due

17

~o ~ soo.2
process because CYS, Lawrence County, Gajda, Copper and Montague infringed upon Plaintiffs'
fundamental liberty interest in 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.
101.

Defendants CYS, Lawrence County, Gajda, Copper 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.
102.

As a direct consequence of the actions of Defendants CYS, Lawrence County,

Gajda, Copper 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.
103.

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 ana Rodriguez vs. Defendants Jameson, CYS, Lawrence County, Gajaa
and Copper)
104.

Plaintiffs incorporate by reference the allegations of the preceding paragraphs as

though. set forth at length herein.
105.

Upon information and belief, Defendants Jameson, CYS, Lawrence County,

Gajda, and Copper 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

901500.2

from. their custody without reasonable suspicion that she had been abused or was in imminent
danger of abuse.
106.

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.)
107.

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.)
10$.

Defendants Jameson, CYS, Lawrence County, Gajda and Copper 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.
109.

The aforementioned conspiracy violates 42 U.S.C. § 1983.

110.

Defendants' actions violated Plaintiffs' clearly established rights.

1.11.

Defendants CYS, Lawrence County, Gajda, Copper and Jameson acted

intentionally to deprive Plaintiffs of their constitutional rights under the Fourteenth Amendment,
or in wazlton, reckless disregard of those rights.
112.

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.

i9

9alsoo.2
113.

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.
PRAYER FOR RELIEF
WHEREFORE, in light of the foregoing, Plaintiffs respectfully request the following:
(a)

a declaratory judgment pursuant to 28 U.S.C. ~§ 2201 and 2202 and 42 U.S.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 U.S.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.

m

G•Z1~i IZ1~IJ

Respectfully submitted,
/s/ Sara J. Rose
Witold J. Walczak
PA ID No.: 62976
Sara J. Rose
PA ID No.: 204936
AMERICAN CIVIL LIBERTIBS FOUNDATION
OF PENNSYLVANIA

313 Atwood Street
Pittsburgh, PA 15213
{412) 681-7864
[e-mail]
[e-mail]
MEYER, UNKOVIC &SCOTT, LLP
/s/Patricia L. Dodge
Patricia L. Dodge
PA ID No.: 35393
Antoinette C. Oliver
PA ID No.: 206148
535 Smithfield Street
Suite 1300
Pittsburgh, PA 15222
[phone]
[e-mail]
[e-mail]
Counsel for Plaintiffs
October 24, 2011

21

901500.2

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the within Second
Amended Complaint was served this 24th day of October, 2011, via the Court's electronic
transmission facilities pursuant to Fed. R. Civ. P. 5(b)(3) and Local Rule S.5 upon the following:
John C. Conti, Esquire
Richard J. Kabbert, Esquire
Dickie, McCamey & Chilcote
Two PPG Place, Suite 400
Pittsburgh, PA 15222
(Counselfor Defendant Jameson Health System, Inc.)
Marie Milie Jones, Esquire
Meyer, Darragh, Buckler, Bebenek &Eck, P.L.L.C.
U.S. Steel Tower, Suite 4850
600 Grant Street
Pittsburgh, PA 15219
(Counsel,for Defendants Lawrence County, Lawrence County Children and Youth Services and
Chrissy Montague)
By: /s/Patricia L. Dodge
Counsel for Plaintiffs