BOWER v. LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES et al
Filing
62
MEMORANDUM OPINION & ORDER OF COURT granting 41 Motion for Summary Judgment and granting in part and denying in part 46 Motion for Summary Judgment. Signed by Judge Terrence F. McVerry on 8/12/2013. (kly)
BOWER v. LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES et al
Doc. 62
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EILEEN A. BOWER,
Plaintiff,
v.
LAWRENCE COUNTY CHILDREN AND
YOUTH SERVICES, EVA LIGHTEL
Lawrence County Children and Youth Services
Caseworker, AND JAMESON HEALTH
SYSTEMS,
Defendants.
)
)
)
) 2:11-cv-931
)
)
)
)
)
)
)
MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court are the MOTION FOR SUMMARY JUDGMENT (ECF No.
41) filed by Defendant Jameson Health Systems (“Jameson” or “Hospital”) and the MOTION
FOR SUMMARY JUDGMENT (ECF No. 46) filed by Defendants Lawrence County Children
and Youth Services (“LCCYS”) and caseworker Eva Lightel (“Lightel”), with briefs in support.
Plaintiff Eileen Bower (“Bower”) has filed responses in opposition to the motions and
Defendants have filed reply briefs. The parties have also thoroughly developed their respective
positions as to the Concise Statements of Material Facts (“CSMF”) and have submitted
voluminous appendices. The motions are ripe for disposition.
Factual and Procedural Background
This case presents difficult questions regarding the balance between a mother’s right to
keep her newborn baby and the duties of the government, an individual case worker, and a
hospital to report and address suspected child abuse. The material facts are essentially
undisputed. Plaintiff Bower contends that Defendants wrongfully deprived her of custody of her
1
Dockets.Justia.com
newborn baby (“Baby Brandon”) for seventy-five (75) days due to a “false positive” drug test
caused by having eaten poppy seeds.
In July 2009, Bower was a twenty years old resident of Lawrence County, Pennsylvania.
On July 12, 2009 at approximately 7:00 p.m., Bower hosted a barbecue dinner at her new home.
As part of the meal, Bower consumed linguini salad with McCormick Foods Supreme Pasta
salad dressing which contained poppy seeds. Bower used two bottles of the salad dressing with
one pound of pasta. Bower Deposition at 127. Shortly after dinner, Bower went into labor.
During her pregnancy, Bower had received necessary and appropriate prenatal care and had
passed every drug screen that had been administered, including a drug test taken approximately
three weeks earlier, on June 22, 2009. At 9:20 p.m., Bower was admitted to Jameson for the
birth of her second child.
At that time, Jameson had a written drug testing policy (the “Policy”) by which all
obstetrical patients were administered a urine drug screen in order to identify newborns who may
demonstrate symptoms of drug withdrawal and require special observation and treatment.
Jameson Exhibit L. The policy had been drafted by Jan Peterson, manager of social services for
Jameson. LCCYS was not involved in enacting the policy.1 The hospital laboratory detection
level for opiate metabolites is 300 nanograms/mL, which is far lower than the 2000
nanograms/mL level set by the federal government for federal workplace testing programs.
Jameson’s Policy further required that if a mother tested positive, a drug test be performed on the
newborn’s urine and meconium. The Policy required Jameson to notify its social service
department whenever a maternity patient’s initial drug screen was positive. In July 2009, every
1
Plaintiff denies this CSMF, on the basis that Jameson and LCCYS had a “good business relationship”; and various
Jameson and LCCYS personnel held meetings regarding child abuse services and in-service support. Plaintiff’s
suggestion that LCCYS helped to develop Jameson’s “policies” mis-states the record. Debra Perretta actually
testified: “I believe they were related at one time to help do our child abuse policies – not policies – child abuse
services.” Perretta Deposition at 20 (emphasis added).
2
initial positive drug screen result was reported by Jameson’s social services staff to LCCYS.2
Jameson Exhibit K. In addition, positive results on the initial urine screen would be sent for a
confirmatory test.
At 10:56 p.m. on July 12, 2009, Bower provided a urine sample. She was not told that
the sample would be used to conduct a drug screen. Nobody asked Bower whether she had eaten
any foods that might affect the test results. Plaintiff’s initial urine screen came back “present”
for morphine. A concentration was not listed.
Baby Brandon was born shortly after midnight on July 13, 2009. On July 13, 2009,
Jameson forwarded the urine sample to Quest Diagnostics (“Quest”) for a confirmation test
(without notice to Bower).
On July 14, 2009, Jameson reported the positive urine screen result to LCCYS. The
LCCYS Intake Screening Form noted that “Baby tested negative,” although the results of a
confirmatory meconium test would not be known for a “few weeks.”3 LCCYS Exhibit E. The
Form had a section for “Safety Threats” which noted that there was no present or impending
danger. Later that day, a social worker for Jameson advised Bower of the positive drug screen
and that the result had been reported to LCCYS. Bower testified: “She just said that its their
duties [sic] to inform [LCCYS] and that, you know, whatever happens from there, they have no
control over.” Bower Deposition at 161. Bower was distraught; she denied any substance abuse;
and she tried to find out what had caused the false positive result. A nurse asked whether she
had eaten poppy seeds, and Bower researched the ingredients of the Supreme Pasta dressing on
her cell phone.
2
The Jameson Policy has since changed.
The test results on Baby Brandon’s meconium were actually received on July 17, 2013 and were “negative” for
drugs. Bower Exhibit X. It is not clear when the test results were provided to LCCYS.
3
3
LCCYS caseworker Lightel became involved on July 14, 2009. Lightel’s notes reflect a
conversation with Barb Smolnik, a social worker at Jameson, who informed Lightel that there
was “no explanation for the Opiates” and advised that the test did not appear to be a “false
positive.”4 LCCYS Exhibit F.
In July 2009, the policy of LCCYS was to seek an ex parte Order granting LCCYS
custody of any newborn whose mother had tested positive for an illegal substance. 5 Lightel
Deposition at 26-27. As Lightel testified, it was not necessary for a caseworker to perform any
investigation regarding the positive test: “I have the hospital saying she tested positive and that
was enough for me.” Id. at 16. Pursuant to LCCYS policy, the positive drug screen was the only
information needed for the caseworker “to get an ex parte order to take the child.” Id. This was
LCCYS policy for all intake workers at that time. Id. at 27. Lightel was following LCCYS
policy in this case. Id. The Director of LCCYS is responsible for the development of the policy.
Copper Deposition at 35. Various Jameson staffers were generally aware of the LCCYS policy
but there is no evidence in the record that Jameson had any role in the development or
implementation of the LCCYS policy.
On the morning of July 15, 2009, Lightel decided to obtain an ex parte Order to take
Baby Brandon into custody. The LCCYS action was based solely on the positive urine screen as
reported by phone from Jameson.6 Prior to seeking protective custody, Lightel did not interview
Bower or her family members; did not interview Bower’s treating physician, Dr. Bassaly; did not
attempt to obtain copies of Bower’s medical records or prior drug tests; never obtained the drug
4
Hospital records reflect that Bower was administered Darvocets, an opiate, on July 13, 2009 (after the urine
screen).
5
The LCCYS Policy has since changed.
6
Lightel testified that a LCCYS manager, Frank Merlino, told her that Bower had been in the LCCYS system as a
teenager. However, Merlino denied any knowledge of Bower and Defendants have disavowed the alleged
information from Merlino as a basis for Lightel’s decision to seek custody. Reply Brief at 4.
4
test on Baby Brandon; and never inspected Bower’s home or investigated whether she had the
necessary items to care for an infant. No services or options were offered as an alternative to
removal of the baby. In petitioning for the ex parte order of custody, Lightel alleged that Bower
had tested positive for opiates and therefore Baby Brandon was without proper parental care.
LCCYS contended that to allow Baby Brandon to return home with Bower would be contrary to
his welfare because he had been exposed to drugs.
On July 15, 2009, Judge John W. Hodge of the Court of Common Pleas of Lawrence
County issued an ex parte custody Order. The Order stated, inter alia: “Although no services
were offered by the Lawrence County Children and Youth Agency to prevent removal of the
child from the home, this level of effort was reasonable due to the emergency nature of the
situation, safety considerations and circumstances of the family.” Bower Exhibit L.
After obtaining the ex parte Order, Lightel spoke again to Smolnik, who related Bower’s
claim that she had consumed poppy seeds shortly before she went into labor. Lightel’s notes
reflect that the Hospital was “doing a confirmatory test and the lab work should be back on
Thursday or Friday” (July 16 or 17). LCCYS Exhibit F. These phone calls with Smolnik were
Lightel’s only contacts with anyone from Jameson about the case. Lightel Deposition at 17.
Later on July 15, Lightel spoke (for the first time) to Bower. Bower told Lightel that
ingesting poppy seeds may have caused the positive test and that there was “a rush” on the
confirmatory drug test. Bower had a Walmart receipt for the poppy seed salad dressing, which
she showed to the nurse, her attorney, and LCCYS. Bower also provided Lightel with
information about false positive tests due to poppy seeds that had been printed out by the nursing
staff. Jameson social worker Terry Perkins informed Lightel that the hospital staff “somewhat
believed” Bower’s explanation. Perkins Deposition at 34-35. Lightel did not attempt to
5
investigate Bower’s explanation. Lightel told Bower that LCCYS had already obtained an ex
parte Order to take custody of Baby Brandon and that there would be a hearing the next day.
On July 15, 2009, Quest issued a report on the initial urine screen which indicated that
morphine was “present” but at such a low concentration that the reference range was “NONE
DETECTED.” LCCYS Exhibit C. The detection limit of the Quest report was 100 ng/mL. It is
unclear when the Quest report was provided to LCCYS, although Lightel’s notes reflect that the
confirmatory test results would “come back tomorrow” (July 16). LCCYS Exhibit F.
Bower remained in the hospital because she was distraught. Baby Brandon also remained
in the hospital. On July 16, 2009, a seventy-two hour hearing required by the Pennsylvania
Child Protective Services law commenced before Master Susan Papa. Bower was present at the
hearing along with counsel, Deborah Shaw. Bower was unwilling to accept that LCCYS was
going to take her son and put him in foster care. Bower Deposition at 174. Bower testified that
during a recess, the Master came into a back room and yelled at her to “buck up, get a backbone,
and stop crying.” Bower Deposition at 176-77. Bower and her attorney then decided to waive
the hearing and it was determined that Baby Brandon would remain in the custody of LCCYS
until an adjudication hearing scheduled on the following Tuesday, July 21, 2009.
Lightel’s notes on July 16 reflect that Bower continued to deny any type of drug use;
agreed to undergo a drug and alcohol evaluation; that Bower’s other child, Rhiauna, appeared
healthy and clean; that Baby Brandon’s father was absent and wanted by the law; and that Baby
Brandon “looked good,” but was demonstrating excessive sucking and was a little cranky. When
Bower returned to the hospital after the 72-hour hearing, Baby Brandon had already been taken
into custody by Lightel and placed in foster care.
6
On July 20, Lightel made a surprise visit to Bower’s home. There was a large dog in the
home, which Bower placed in a bedroom prior to giving Lightel access. There were no gates to
prevent Rhiauna from accessing the stairs, but Lightel determined that it was safe for Rhiauna to
stay in the home with Bower. Lightel did not observe any visible signs of drug use. Lightel
administered a random drug screen, which Bower passed.
On July 21, 2009, an adjudication hearing was held at 1:30 p.m., at which Bower was
represented by counsel. Master Papa found that Baby Brandon should remain in LCCYS
custody, stating: “Mother tested positive for opiates at child’s birth.” Exhibit J. On July 23,
2009, Bower visited Baby Brandon at the LCCYS office. Lightel’s notes reflect that Bower
“appears to love him and was good with him during the visit.” LCCYS Exhibit F.
On July 24, 2009, the Lawrence County Court of Common Pleas adopted the Master’s
recommendations and continued the hearing until September 28, 2009. The Court ordered
random drug testing, and noted that if Bower was fully compliant and no other issues had arisen,
the case may be dismissed at that time.
On July 27, 2009 Julie Jendrysik, case manager with Lawrence County Drug and Alcohol
Commission, performed a drug and alcohol evaluation of Bower. Jendrysik determined that “no
treatment is recommended at this time,” although she noted that the evaluation was largely based
on self-reporting from Bower. Several days later, Jendrysik called Lisa Matteo at LCCYS to
express her belief that Bower had not been truthful regarding her drug history, although
Jendrysik had made no such comments to Bower. LCCYS required Bower to go to drug
treatment.
7
On July 30 Lightel, an Intake worker, ceased her involvement in the case. On August 3,
LCCYS assigned the case to Placement Caseworker Megan McConahy. McConahy’s first
involvement with the case did not occur until August 11, 2009. Deposition at 31.
On September 28, 2009, seventy-five (75) days7 after he was removed, Baby Brandon
was returned to Bower’s physical custody following an informal adjudication/disposition hearing
with Master Papa. The Master’s recommendation was adopted by Court Order of October 8,
2009. During these 75 days, Bower was permitted one weekly hour-long visit with her son. On
two or three occasions, Bower was unable to schedule this visit because Lightel was on vacation.
On December 3, 2009, a final hearing was held in the Lawrence County Court of
Common Pleas and LCCYS involvement was terminated. The Court Summary noted that Bower
had been drug tested on three separate occasions since the last court hearing and all results had
been “clean.” On December 9, 2009 legal custody of Baby Brandon was returned to Bower.
This federal litigation followed. Plaintiff filed a five-count Complaint. On November
14, 2011 this Court issued a Memorandum Opinion which granted Defendants’ Motion to
Dismiss as to Counts IV and V, but denied the motion as to Counts I-III. Count I alleges that
LCCYS and Lightel violated her substantive due process rights under the Fourteenth
Amendment to the United States Constitution.8 Count II alleges that Jameson and LCCYS
conspired to violate Bower’s constitutional rights. Count III alleges negligence by Jameson, in
that it failed to use reasonable care to avoid a “false positive” drug test; failed to ensure that
LCCYS was apprised that the results indicated a “below the reference range”; and violated its
own policy by reporting a result below the 300 nanogram/mL screening level. Plaintiff alleges
that she endured emotional turmoil and stress due to the seizure of her baby. Plaintiff further
7
8
During this time, Baby Brandon had been placed in three different foster homes.
The Court, and the Defendants, assume that the constitutional claims are brought pursuant to 42 U.S.C. § 1983.
8
alleges that she lost the ability to breast-feed and bond with her infant child. Bower challenges
both the initial decision to take Baby Brandon into custody and the length of the deprivation.
Standard of Review
Pursuant to Fed.R.Civ.P. 56(a), “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,” summary
judgment should be granted. The threshold inquiry is whether there are any genuine factual
issues that can be properly resolved only by a finder of fact because they may reasonably be
resolved in favor of either party. Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A
court may grant summary judgment if the nonmoving party fails to make a factual showing
“sufficient to establish an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986). In
making this determination, the nonmoving party is entitled to all reasonable inferences.
Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). A court may not make
credibility determinations or weigh the evidence in making its determination. Reeves v.
Sanderson Plumbing Products Inc., 530 U.S. 133, 150 (2000).
Discussion
Fundamental constitutional rights are implicated in this case. “The deprivation of a
parent's custodial relationship with a child is among the most drastic actions that a state can take
against an individual's liberty interest, with profound ramifications for the integrity of the family
unit and for each member of it.” B.S. v. Somerset County, 704 F.3d 250, 272 (3d Cir. 2013).
When the government intrudes on the parent-child relationship, it implicates “a fundamental
9
liberty interest of the parent who loses custody” and risks liability for having caused such a
deprivation wrongly. Id. On the other hand, the parental interest must “be balanced against the
state's interest in protecting children suspected of being abused.” Id. The right to familial
integrity does not include a right to be free from child abuse investigations. Id. at 273.
Fundamental parental rights are implicated both by the initial decision to remove a child
and by the length of the resulting separation. “While the question of what constitutes due
process is necessarily rooted in the circumstances of a given case, it is axiomatic that at least
some process is required when ‘a state seeks to alter, terminate, or suspend a parent's right to the
custody of [her] minor children.’” Id. at 272 (quoting McCurdy v. Dodd, 352 F.3d 820, 827 (3d
Cir. 2003)). It is not sufficient that a mother’s custodial rights were eventually addressed after
the caseworker’s investigation was concluded. Because a constitutional deprivation occurs upon
the initial removal of the child from the mother, being heard much later fails to address the harm.
Id. Moreover, after a deprivation, the government must work promptly to minimize the parentchild separation. The B.S. Court explained: “it should be obvious that a hearing 40 days later is
not sufficiently prompt. The delay should ordinarily be measured in hours or days, not weeks.”
Id. at n. 31. The Court emphasized: “in view of the extremely important liberty interests at stake
here, due process required the County to offer Mother a chance to be promptly heard after they
took Daughter from her home, regardless of whether or not state law independently imposed that
obligation.” Id. at 273. With that background, the Court turns to Bower’s claims against each
Defendant.
10
A. Caseworker Eva Lightel (Count I – Substantive Due Process)
Lightel contends that she is entitled to absolute immunity from all claims. In B.S., the
Court explained that the doctrine of absolute immunity may be decided as a threshold issue. Id.
at 261 n.22. Child welfare workers are entitled to absolute immunity when their “function” is
analogous to that of a prosecutor, such as “their actions in petitioning and in formulating and
making recommendations to the state court.” Id. at 262. One justification for providing
immunity to caseworkers is that “they are under the supervision of the agency that employs
them.” Id. at 263. An agency such as LCCYS has an incentive to ensure that its employees do
not violate constitutional rights because the agency itself “is not immune from suit for abuses
committed by employees . . . acting pursuant to agency policy or custom.” Id.
Caseworkers are not absolutely immune for actions taken outside the context of a judicial
proceeding, such as investigative or administrative actions. Id. at 270. A caseworker may not
shield investigatory work from review merely by seeking a court order at some point. Id. On the
other hand, immunity extends “for all of their actions in preparing for and prosecuting [ ]
dependency proceedings.” Id. at 262. To determine whether a caseworker is entitled to
immunity, the Court must ascertain the underlying function served by the investigation and the
role the caseworker occupied. Id. at 270. In B.S., the Court concluded that the caseworker was
immune for all of her conduct, including her post-removal investigation, because she gathered
and evaluated the information in preparation for an upcoming judicial proceeding at which she
advocated on behalf of the county. Id. at 269-70.
Applying these principles to the evidentiary record in this case, it is clear that Lightel is
entitled to absolute immunity for her original decision to obtain an ex parte order from the Court
to take Baby Brandon into custody. Lightel acted in accordance with LCCYS policy and her role
11
was analogous to that of a prosecutor. While a somewhat closer call, the Court concludes that
Lightel is also entitled to absolute immunity for her subsequent investigatory activities. The
function she performed was similar to that discussed in B.S., namely an investigation to make a
custody recommendation in the context of ongoing legal proceedings. The Court had ordered
that Baby Brandon be taken into custody and Lightel was gathering information for a “72 Hour”
hearing on July 16, 2009; an Adjudication Hearing scheduled for July 21; and a hearing set for
September 28, 2009. Lightel’s involvement ended on July 30, 2009, when the case was
“transferred to Placement.”9 Lightel, similar to the caseworkers in B.S., gathered information as
a necessary predicate to formulation of a recommendation to the Court in a subsequent custody
determination. Id. at 269. Thus, Lightel is entitled to absolute immunity.
In accordance with the foregoing, Lightel is entitled to summary judgment on Count I
and she will be dismissed as a party to this case.
B. LCCYS (Count I – Substantive Due Process)
A government agency is subject to § 1983 liability for the actions of its workers which
occur pursuant to agency policy. Id. at 263. It is undisputed that in July 2009, LCCYS had a
policy, practice or custom “of seeking an ex parte Order of Court to remove a child from a
mother who had tested positive for an illegal substance based upon that test result.” LCCYS
Brief at 12-13. LCCYS does not contest that Lightel acted pursuant to its policy, but merely
contends that its policy of taking a child into custody based solely on the positive drug test – with
no further investigation – does not “shock the conscience.” LCCYS Reply Brief at 4-5.
This Court discussed the contours of the substantive due process claim against LCCYS at
length in its November 14, 2011 Memorandum Opinion, which discussion it reaffirms and
9
Placement caseworker McConahy is not a party to this case.
12
incorporates. Judge David Stewart Cercone of this Court also addressed very similar issues
involving the same LCCYS and Jameson policies in Mort v. Lawrence County Children and
Youth Services, et al., 2011 WL 3862641 (W.D. Pa. August 31, 2011).
Upon receipt of information regarding possible drug use by a new mother, the
government must conduct a reasonable, individualized investigation prior to taking away her
baby. As explained in Mort: “To override the parental interest the state must have some
reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been
abused or is in imminent danger of abuse.” Id. (citing Croft v. Westmoreland County Children
and Youth Services, 103 F.3d 1123, 1126 (3d Cir. 1997). Removal of a child from parental
custody “without reasonable suspicion to believe ongoing parental custody presents a threat to
the child's health or safety constitutes an arbitrary abuse of government power.” Id. (citing
Croft).
In Mort, the Court concluded that the mother had properly pled a substantive due process
violation against LCCYS. The Court reasoned that a policy that separates a mother and a
newborn child based on a single drug test, without an individualized assessment of the specific
facts and circumstances, “does not supply reasonable suspicion of child endangerment or
ongoing abuse.” In Croft, the United States Court of Appeals for the Third Circuit held that CYS
violated parental substantive due process rights by removing a parent from the home based on a
tip from an anonymous informant. 103 F.3d at 1126. The Court stated: “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.” The information available to CYS must create “an objectively reasonable suspicion of
abuse justifying the degree of interference with the [parental] rights.” Id.; Accord Nicholson v.
13
Williams, 203 F.Supp.2d 153, 237 (E.D.N.Y. 2002) (“The government must be able to show ‘an
objectively reasonable basis' for deciding the child is immediately threatened with harm to justify
removal from the mother without prior judicial authorization.... A corollary of this rule is that the
government must conduct sufficient investigation into the alleged neglect or abuse it relies upon
to establish an objectively reasonable belief that the mother has neglected or abused her child.”)
(citing Gottlieb v. County of Orange, 84 F.3d 511, 516 (2d Cir. 1996)); and Strail v. Dept. of
Children, Youth and Families of State of R.I., 62 F.Supp.2d 519, 529 (D.R.I. 1999) (“[T]he due
process clause will certainly be offended if children are taken away from their parents without
sufficient investigation.”); Cf. Stanley v. Illinois, 405 U.S. 645, 656–657 (1972) (involving
parental rights of unwed father) (“Procedure by presumption is always cheaper and easier than
individualized determination. But when, as here, the procedure forecloses the determinative
issues of competence and care, when it explicitly disdains present realities in deference to past
formalities, it needlessly risks running roughshod over the important interests of both parent and
child. It therefore cannot stand.”). In Croft, the Court explained that the burden is on CYS to
develop objective evidence prior to taking action, rather than on a parent to disprove an
allegation. A caseworker must “corroborate the information through other sources which would
have reduced the chance that the informant was recklessly relating incorrect information or had
purposely distorted information.” 103 F.3d at 1127.
As explained in Mort, the LCCYS policy can result in the separation of mother and child
within days of birth without any valid basis for doing so. As illustrated by the timeline in this
case, there was no need for precipitous, ex parte court action. Baby Brandon remained in the
hospital for several days, during which time LCCYS could have corroborated (or questioned) the
initial urine screen result. Indeed, the LCCYS Intake Screening Form noted that there was no
14
present or impending danger. By taking custody of Baby Brandon without any effort to
corroborate the drug test and without talking to the parent, LCCYS policy did not provide
sufficient protection for the fundamental parental rights involved in light of the drastic nature of
the deprivation. The LCCYS action in this case was an arbitrary use of government power
which transcended the realm of negligence and deliberate indifference. Accord Mort, 2011 WL
3862641 at * 10 (citing Miller, 174 F.3d at 376). Lightel stated: “I have the hospital saying she
tested positive and that was enough for me [to get an ex parte order to take the child].”
Deposition at 16. The removal of Baby Brandon based solely on Jameson’s report of the initial
urine screen – with no individualized investigation – shocks the conscience and violates
Plaintiff’s substantive due process rights.
LCCYS suggests that its liability should be limited to the initial removal of Baby
Brandon because there is no evidence of a post-removal policy. The Court cannot agree. The
damages suffered by Bower occurred as a direct result of the LCCYS removal policy and
continued throughout the entire period of the separation. The B.S. Court explained that the postremoval delay should be measured in “hours or days, not weeks.” 704 F.3d at 272 n. 31. In this
case, the delay lasted for two and a half months (75 days). The record reflects a total lack of
evidence of drug use by Bower and a shocking lack of urgency by LCCYS to remedy the
wrongful deprivation of her parental rights which exceeds negligence or deliberate indifference.
LCCYS never developed any evidence to support a reasonable suspicion of child endangerment
or ongoing abuse by Bower. Bower’s prenatal drug test on June 22 was negative. Baby
Brandon’s initial drug test was negative. The Quest Lab confirmation test on July 15 showed
Bower’s morphine level as “none detected.” Bower repeatedly denied any drug use and
provided a plausible explanation, supported by a receipt for the poppy seed salad dressing.
15
Jameson staff seemed to believe Bower and provided information about how poppy seeds can
cause a “false positive” test. Baby Brandon’s meconium test on July 17 was negative. Bower’s
July 20 drug test was negative. Other random drug tests of Bower during the 75-day deprivation
were also negative. The July 27 drug and alcohol evaluation of Bower determined that “no
treatment is recommended at this time.” Despite all of this information that negated a suspicion
of child abuse, LCCYS never exhibited a sense of urgency to remedy its wrongful decision to
take Baby Brandon into custody. LCCYS’ efforts to facilitate weekly visits between Bower and
Baby Brandon were lacking – on several occasions, no visit occurred because Lightel was on
vacation and no alternatives were provided. For a two-week period, while Bower and Baby
Brandon were separated, LCCYS did not even have a caseworker assigned -- Lightel was
removed from the case on July 30 but her replacement, McConahy, did not become involved
until August 11.10 It was LCCYS who violated Plaintiff’s fundamental rights, and thus, LCCYS
had a duty to remedy that violation as quickly as possible. In Mort, LCCYS filed a motion to
dismiss its dependency petition after six days, stating that “after further investigation, there is no
evidence to support illegal drug use by the natural mother.” 2011 WL 3862641 at *5. LCCYS
took no such remedial action in this case, even though it never obtained any evidence of illegal
drug use by Bower and the deprivation lasted for 75 days. In sum, Bower is entitled to recover
damages for the entire period of time during which she was separated from Baby Brandon.
LCCYS relies on two cases for its contention that it did not violate Bower’s substantive
due process rights, Mulholland v. Berks County, 706 F.3d 227, 241 (3d Cir. 2013) and Patterson
v. Armstrong County CYS, 141 F. Supp.2d 512 (W.D. Pa. 2001). Neither case is helpful to
10
The Court is aware that the Adjudication Hearing was postponed from July 21 to September 28 by Master Papa.
However, as the Court explained in B.S., due process requires that a mother be offered a chance to be promptly
heard, regardless of whether or not state law independently imposes that obligation. Id. at 273.
16
LCCYS. In Mulholland, the United States Court of Appeals for the Third Circuit reiterated that
CYS “shocks the conscience” if it takes a child without reasonable factual support:
[The “shocks the conscience”] standard is met if the child is removed without “an
objectively reasonable suspicion of abuse,” based on the information available at
the time. Croft v. Westmoreland Cnty. Children and Youth Servs., 103 F.3d 1123,
1126 (3d Cir. 1997). “Absent such reasonable grounds, governmental intrusions
of this type are arbitrary abuses of power.” Id. That is because “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.” Id. Reasonable suspicion is lacking
when a child welfare agency has “consciously disregarded a great risk that there
had been no abuse.” Ziccardi v. City of Phila., 288 F.3d 57, 66 (3d Cir. 2002).
706 F.3d at 241. In Mulholland, the Court denied the substantive due process claim against the
county because there was no evidence of a policy, practice or custom. By contrast, in this case,
LCCYS admits that the actions against Bower took place pursuant to its policy. The reliance of
LCCYS on Patterson is also misplaced because in that case a teenager’s oral and written
statement about a physical fight with her mother, accompanied by scrapes and bruises on her
body, provided an objectively reasonable basis for taking the child into custody. No such
evidence existed in this case. In accordance with the foregoing, the Court will deny summary
judgment to LCCYS as to Count I.
The Court will then take the logical next step and enter summary judgment in favor of
Bower and against LCCYS on Count I sua sponte. In Croft, the United States Court of Appeals
for the Third Circuit faced this precise procedural posture – the Court had rejected the County’s
substantive due process argument and the parents had not filed a cross-motion for summary
judgment. The majority opinion remanded the case to the district court to enter “automatic
summary judgment on [the parents’] claims.” 103 F.3d at 1127 n.6.11 The same result is
appropriate in this case.
11
For unstated reasons, the concurring judge was reluctant to mandate this result.
17
Whether governmental conduct violates substantive due process is a matter of law for the
court to decide. Benn v. Universal Health System, Inc., 371 F.3d 165, 174 (3d Cir. 2004). The
test is whether the conduct shocks the judicial conscience in a constitutional sense. County of
Sacramento v. Lewis, 523 U.S. 833, 847-48 (1998) (“constitutional concept of conscience
shocking duplicates no traditional category of common-law fault”). Thus, this issue is not
amenable to resolution by a jury.
Pursuant to Fed. R. Civ. P. 56(f)(1), after giving notice and a reasonable time to respond,
a court may “grant summary judgment for a nonmovant.” LCCYS has had a full opportunity to
be heard. The substantive due process claim has been the subject of extensive briefing, not only
at summary judgment, but also at the motion to dismiss stage. The factual and legal issues
necessary to resolve the substantive due process claim have been thoroughly developed and there
are no material questions of fact in this case. The LCCYS policy, causation, and length of the
parent-child separation are all undisputed. Bower is entitled to summary judgment on the
substantive due process claim even if the record is viewed in the light most favorable to LCCYS.
Of course, further proceedings will be necessary to determine damages. See B.S., 704 F.3d at
275 (instructing that “County is liable under § 1983 for whatever damages a jury may deem
appropriate to redress that violation”).
In accordance with the foregoing, summary judgment will be granted in favor of Bower
and against LCCYS on Count I.
C. Jameson and LCCYS (Count II - Constitutional Conspiracy)
In Count II, Bower asserts a constitutional conspiracy/joint participation claim against
Jameson and LCCYS. To establish a constitutional conspiracy claim, Plaintiff must prove: (1) a
18
conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges and immunities under the laws;
and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right or privilege of a citizen of the United States.
Carpenters v. Scott, 463 U.S. 825, 828–29 (1983). In Lugar v. Edmondson Oil Co., the Supreme
Court stated: “Private persons, jointly engaged with state officials in the prohibited action, are
acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not
require that the accused be an officer of the State. It is enough that he is a willful participant in
joint activity with the State or its agents.” 457 U.S. 922, 941 (1982).
Defendants recognize that, under some circumstances, a private entity such as Jameson
may be deemed a “state actor.” However, LCCYS and Jameson contend that there is no
evidence of willful participation, mutual understanding or joint activity to violate Bower’s rights.
Jameson concedes that it reported the test results, but argues that it did not participate in any way
with the decision of how those results would be used by LCCYS.
The Court agrees with Defendants. As explained in Mort, the basic question is whether
the challenged act can be “fairly attributed to the state.” 2011 WL 3862641 at * 14 (citations
omitted). It is true that the interaction between the Jameson policy and the LCCYS policy led to
Baby Brandon being taken into custody and that a more extensive investigation by either
Jameson or LCCYS might have prevented the harm in this case. Nevertheless, the evidentiary
record does not reflect any joint participation between Jameson and LCCYS.
The actions taken by Defendants in this case occurred separately and independently. The
Jameson policy of reporting all positive drug test results was developed by Jameson personnel.
The LCCYS policy of seeking ex parte orders was developed by LCCYS personnel. Jameson
19
had no role in the LCCYS investigation (or lack thereof) regarding potential child abuse by
Bower. Nor did Jameson participate in the obtaining of a custody order from the court by
LCCYS. Likewise, LCCYS had no role in the initial drug testing or reporting by Jameson. The
hospital and LCCYS performed separate tasks at different times.
Plaintiff, at most, shows that LCCYS and Jameson had a “good business relationship”
and various interactions between employees of LCCYS and Jameson on unrelated matters.
Plaintiff must show joint participation in the conduct which caused her constitutional injury. See
Max v. Republican Committee of Lancaster County, 587 F.3d 198, 203 (3d Cir. 2009) (obtaining
information “is not the same as conspiring to violate” constitutional rights); Kost v. Kozakiewicz,
1 F.3d 176, 185 (3d Cir. 1993) (granting summary judgment due to failure of proof that parties
reached an understanding to deny constitutional rights). Regarding Bower, Lightel had only a
couple brief informational phone calls with Smolnik. That is not enough. Indeed, after reporting
the initial positive drug screen, Jameson personnel appeared to oppose LCCYS decision to take
Baby Brandon into custody. There is no evidence of a constitutional conspiracy.
Accordingly, Defendants are entitled to summary judgment on Count II.
D.
Jameson Hospital (Count III – Negligence)
In Count III, Bower alleges that Jameson acted negligently. Jameson contends that it is
immune from tort liability12 under the Child Protective Services Law (“CPSL”). In essence,
Jameson claims immunity based on its “good faith” report of suspected child abuse to LCCYS.
Plaintiff contends that Jameson’s “good faith” is a disputed question of fact, because Jameson
did not have “reasonable” cause to suspect child abuse.
12
State law cannot provide immunity from an alleged violation of the United States Constitution. Caswell v. BJ's
Wholesale Co., 5 F.Supp.2d 312, 318 (E.D. Pa. 1998).
20
The Court concludes that Jameson is immune from liability for its report of suspected
child abuse. The CPSL, 23 P.S. § 6318, states, in relevant part (emphasis added):
(a) General rule.--A person, hospital . . . that participates in good faith in the
making of a report, whether required or not, cooperating with an investigation,
. . . and any official or employee of a county agency who refers a report of
suspected abuse to law enforcement authorities or provides services under
this chapter, shall have immunity from civil and criminal liability that might
otherwise result by reason of those actions.
Section 6318(b) states that for the purpose of any civil proceeding, the “good faith of a
person required to report pursuant to section 6311. . . shall be presumed.” Section 6311, in turn,
imposes a reporting duty upon medical professionals, including hospitals, who have “reasonable
cause to suspect” child abuse. Heinrich v. Conemaugh Valley Memorial Hosp., 648 A.2d 53, 5860 (Pa. Super. 1994). Section 6386 reflects: “Health care providers who are involved in the
delivery or care of an infant who is born and identified as being affected by illegal substance
abuse or as having withdrawal symptoms resulting from prenatal drug exposure shall
immediately cause a report to be made to the appropriate county agency. The county agency
shall provide or arrange for appropriate services for the infant.” Section 6319 provides criminal
penalties for failing to comply with the reporting obligation.
“Good faith” must be measured objectively. Jones v. Snyder, 714 A.2d 453, 456 (Pa.
Super. 1998). Even assuming that Bower had ingested poppy seeds, the undisputed fact remains
that she did test positive for morphine. A newborn baby would likely be affected by a mother’s
apparent illegal substance abuse. Thus, Jameson had reasonable cause to report the test result to
LCCYS, particularly in light of the potential penalties in the CPSL for failing to report such
information. Jameson had no involvement in the subsequent decision of LCCYS to take custody
of Baby Brandon without performing a followup investigation. Plaintiff has failed to overcome
the statutory presumption of “good faith” by Jameson. See Heinrich, 648 A.2d at 58-60 (parents
21
failed to overcome presumption of good faith by hospital in reporting suspected child abuse of
infant).13
In accordance with the foregoing, Jameson is entitled to summary judgment on Count III.
Conclusion
For the reasons set forth above, Lightel and Jameson are entitled to summary judgment
and will be dismissed as parties. LCCYS is entitled to summary judgment on Count II.
However, Bower is entitled to summary judgment against LCCYS on Count I (substantive due
process) and the issue of damages will be submitted to a jury.
An appropriate Order follows.
McVerry, J.
13
Jameson also contends that Plaintiff was required to file a certificate of merit and provide an expert opinion as to
how the hospital policy breached the standard of care. Plaintiff contends that the negligence claim in this case does
not sound in medical malpractice, and therefore, no certificate of merit or expert opinion is necessary. The parties
also disagree as to whether Jameson’s policy was reasonable. The Court does not reach these issues.
22
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EILEEN A. BOWER,
Plaintiff,
v.
LAWRENCE COUNTY CHILDREN AND
YOUTH SERVICES, EVA LIGHTEL
Lawrence County Children and Youth Services
Caseworker, AND JAMESON HEALTH
SYSTEMS,
Defendants.
)
)
)
) 2:11-cv-931
)
)
)
)
)
)
ORDER OF COURT
AND NOW, this 12th day of August 2013, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED and DECREED that:
(1) the MOTION FOR SUMMARY JUDGMENT (ECF No. 41) filed by Defendant
Jameson Health Systems is GRANTED and Jameson is dismissed as a party;
(2) the MOTION FOR SUMMARY JUDGMENT (ECF No. 46) filed by Defendants
Lawrence County Children and Youth Services (“LCCYS”) and caseworker Eva
Lightel is GRANTED IN PART AND DENIED IN PART, as follows: LCCYS is
granted summary judgment on Count II of the complaint only; Lightel is granted
summary judgment on Count I of the complaint and is dismissed as a party;
(3) Plaintiff is GRANTED summary judgment against LCCYS on Count I (substantive
due process) of the complaint;
(4) the issue of Plaintiff’s entitlement to damages on Count I will be submitted to a jury.
On or before August 26, 2013, Plaintiff shall file her Pretrial Narrative Statement. On or
before September 9, 2013, LCCYS shall file its Pretrial Narrative Statement. The Court will
conduct a pretrial conference on Friday, September 13, 2013 at 10:15 a.m. in Courtroom 6C,
United State Courthouse, 700 Grant Street, Pittsburgh, PA 15219.
The caption is hereby amended as follows:
EILEEN A. BOWER,
Plaintiff,
v
LAWRENCE COUNTY CHILDREN AND
YOUTH SERVICES,
Defendant.
)
)
)
) 2:11-cv-931
)
)
)
)
BY THE COURT:
s/Terrence F. McVerry
United States District Judge
cc:
Stanley T. Booker, Esquire
Email: stb233@yahoo.com
Marie Millie Jones, Esquire
Email: mjones@jonespassodelis.com
John C. Conti, Esquire
Email: jconti@dmclaw.com
Richard J. Kabbert
Email: rkabbert@dmclaw.com
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?