The opinion of the court was delivered by: CALDWELL
Before the court are motions to dismiss filed on behalf of the County of York, York County Children and Youth Services (YCCYS) and Ora G. Gruver, YCCYS administrator, defendants in this civil rights action. The action was initiated by Cameron C. R. Bailey and Richard Oare, administrator of the estate of Aleta V. Bailey. Aleta Bailey, the five year old daughter of Cameron C. R. Bailey and Jo Ellen Bailey Naylor, died on February 18, 1982. At the time of her death, Aleta resided in York, Pennsylvania, with her mother, who was then separated from her father. Larry Hake, a boy friend of Jo Ellen Bailey Naylor, who sometimes lived with her, was convicted of first degree murder in connection with the death of Aleta. Jo Ellen Bailey Naylor was convicted of third degree murder in the death of her daughter.
Plaintiffs' cause of action against defendants is premised on the defendants' alleged violation of the Child Protective Services Act in the handling of the Bailey case. Specifically, it is alleged that on or about January 11, 1982, the YCCYS was advised of evidence that Aleta Bailey had been physically abused. Thereafter, it is alleged that the YCCYS, through an employee, obtained custody of Aleta Bailey and had her examined at a hospital. Examination revealed evidence of abuse and it was determined that the marks of abuse resulted from excessive discipline by Larry Hake. The YCCYS, it is further alleged, then placed the child with her aunt, informing Jo Ellen Bailey Naylor that her daughter would be returned to her custody when she had made arrangements to have Larry Hake move from her home and to deny him access to Aleta Bailey. On January 13, 1982, Aleta Bailey was returned to her mother's custody. Defendants are alleged to be responsible for failing to ascertain that Larry Hake continued to reside with Ms. Naylor after January 13, 1982 and in following various enumerated institutional policies and procedures which are said to be defective. It is alleged that defendants' action deprived Aleta of her constitutional right to life and to counsel
and Cameron Bailey of his constitutional right to parenthood.
Defendants have moved for dismissal on various theories including failure to state a claim under 42 U.S.C. § 1983, immunity, statute of limitations, and others.
The Civil Rights Act provides that
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress . . . .
42 U.S.C. § 1983. Fundamental to any claimed violation of 42 U.S.C. § 1983 is that the harm result from "state action" or action taken "under color of state law." There is no doubt that the YCCYS is a creature of state law and that the plaintiff complains that the actions or inactions of YCCYS caused the death of Aleta Bailey. We must determine, initially, from the face of the complaint whether, as a matter of law, Aleta Bailey's death can be charged to defendants in the context of a civil rights action. In this regard, we find the language of the court in Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) instructive:
There is a constitutional right not to be murdered by a state officer, for the state violates the Fourteenth Amendment when its officer, acting under color of state law, deprives a person of life without due process of law. But there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.
Id. at 618 (citations omitted; emphasis added). See also, Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980).
We are aware, however, that plaintiff asserts that rights were created and affirmative duties imposed upon the YCCYS by the terms of the statute by which it was created. We have been made aware that other courts, under similar circumstances have recognized causes of action. In Doe v. New York City Dept. of Social Services, 649 F.2d 134 (2d Cir. 1981), for example, the court recognized a cause of action against a branch of a state foster care agency which had placed plaintiff in a foster home. Plaintiff alleged that she had been abused by her foster parent and that the foster care agency had been remiss in failing to conduct regular inspections of the foster home, as it was required to do. The court said:
When an official is charged with default in exercise of the above affirmative responsibility, there are two fundamental requisites for § 1983 liability to be imposed. The first is that the omissions must have been a substantial factor leading to the denial of a constitutionally protected liberty or property interest . . . . The second is that the officials in charge of the agency being sued must have displayed a mental state of "deliberate indifference" in order to "meaningfully be termed culpable" under § 1983.
Doe was distinguished in the case of Karole K. Jensen, Administratrix of the Estate of Sylvia R. Brown v. Conrad, 570 F. Supp. 91 (D.S.C. 1983). In that case, suit was brought on behalf of a deceased minor who allegedly died as a result of child abuse. Suit was brought ...