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MCLAUGHLIN v. PERNSLEY

March 10, 1987

John J. McLaughlin and Marilyn M. McLaughlin
v.
Irene Pernsley, Commissioner and City of Philadelphia Department of Human Services



The opinion of the court was delivered by: HANNUM

 HANNUM, S.J.

 In the present action, the plaintiffs, John J. McLaughlin and Marilyn M. McLaughlin, allege that the defendants, the City of Philadelphia Department of Human Services and its Commissioner, Irene Pernsley, violated their rights under the United States Constitution when the defendants, pursuant to their policy against cross-racial long-term foster care placements and adoptions, removed Raymond Bullard, a black child committed to plaintiffs' foster care, from plaintiffs' home on October 18, 1985. *fn1"

 Raymond Bullard lived with the plaintiffs, a white couple, for a two-year period commencing when the boy was five months old.

 The plaintiffs, in their complaint, seek injunctive relief, compensatory damages, punitive damages, as well as reasonable attorney's fees from defendants to redress these alleged constitutional violations. Additionally, the plaintiffs have filed a motion for a temporary restraining order or in the alternative for a preliminary injunction. In their motion for preliminary relief, the plaintiffs request this Court to issue an order, among other things, directing the Department to return the foster child, Raymond Bullard, to their foster care.

 The defendants have filed a motion presently before the Court to dismiss plaintiffs' complaint or in the alternative for alternative motion for judgment on the pleadings at this time. See Transcript of Oral Argument (hereinafter "Tr. of Oral Arg.") 2; id. 4. Since the resolution of the issues raised by defendants' alternative motion for judgment on the pleadings turn largely on factual considerations, this Court would entertain the defendants' motion only after the plaintiffs have had a reasonable opportunity to obtain discovery from the defendants. *fn3"

 The defendants move to dismiss plaintiffs' complaint on two grounds. As an initial matter, defendants contend that plaintiffs' commenced judicial proceedings in the Court of Common Pleas, Family court division, where plaintiffs had a full and fair opportunity to have their claims adjudicated. Thus, the defendants assert that plaintiffs are barred from raising these claims again in this Court by virtue of the res judicata doctrine.

 The defendants then argue that this Court should abstain from exercising jurisdiction over plaintiffs' claims as required by the comity doctrine first enunciated by the Supreme Court in Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). The defendants contend that the proceedings commenced by plaintiffs in the state court before the Honorable Harvey N. Schmidt are ongoing in the sense that exceptions to the final order that Judge Schmidt entered on that matter remain to be litigated; first, post-trial before Judge Schmidt and then on direct appeal. Defendants argue that plaintiffs would have an adequate opportunity to raise their federal constitutional claims by litigating their exceptions in these ongoing proceedings.

 For reasons set forth more fully below, this Court finds that the plaintiffs' federal constitutional claims are not barred by the res judicata doctrine. Moreover, the Court should not abstain from exercising its rightful jurisdiction over these claims. Accordingly, this Court will deny the defendants' motion to dismiss plaintiffs' complaint or in the alternative for judgment on the pleadings.

 I. The Facts

 Raymond Christopher Bullard was born on June 25, 1983 in Philadelphia, Pennsylvania to his natural parents believed to be Martina Brown and a Mr. Bullard, whose first name is unknown to the Court. *fn4" Subsequent to Raymond's birth and for a short time only, Ms. Brown was the sole custodial parent of the child. See Defendants' Motion to Dismiss Complaint or in the Alternative for Judgment on the Pleadings, at Exhibit A (hereinafter "Petition for Return of Foster Child"). It is believed by plaintiffs that Mr. Bullard does not want to parent the child. Petition for Return of Foster Child, at p. 2, para. 9. *fn5"

 On November 7, 1983, Raymond Bullard was adjudicated dependent and committed to the temporary legal custody of the Department by the Honorable Raymond Lederer, Court of Common Pleas of Philadelphia County, Family court division, retroactive to October 19, 1983, when Raymond was placed into foster care.

 Raymond Bullard was placed into emergency foster care by the Catholic Social Services (hereinafter "CSS"), a private, nonprofit foster family care agency under contract with the Department. The Catholic Social Services placed Raymond Bullard, who is black, with the McLaughlins, who are white, on October 19, 1983. *fn6"

 The Catholic Social Services, under the contractual arrangement it has with the DHS, provides for the care, protection, training and education of dependent children assigned to it by the Department. The CSS also, pursuant to its contract with the Department, places dependent children assigned to it, such as Raymond Bullard, into foster homes.

 Although the original placement was for emergency foster care, which is normally for a period not in excess of ninety (90) days, the arrangement became, by the Department's actions, one of continuing foster care. *fn7" The plaintiffs provided foster care to Raymond Bullard for two years. *fn8"

 The McLaughlins allege that they were, are and throughout have been willing to provide a long-term continuing family relationship for Raymond. The plaintiffs also allege that they informed CSS, although at a time not specified in their complaint, of their wish to adopt the child if and when the natural parents' rights were terminated.

 On October 10, 1985, despite plaintiffs' objections, Raymond Bullard was taken from their home to stay overnight with a black foster family. The plaintiffs' allege that the CSS, at that time, erroneously represented to them that the Williams family, the black family with whom Raymond was to stay overnight, would adopt the child if and when the natural parents' parental rights were terminated -- whereas, in fact, the Williams family have never so intended.

 On October 18, 1985, the plaintiffs' allege that the CSS, acting for and on behalf of defendants, removed Raymond Bullard from their foster care. The sole reason for the removal, plaintiffs allege, was that the McLaughlins were white and that Raymond Bullard was black. Moreover, the plaintiffs' allege that the removal was effectuated pursuant to defendants' policy that determines long-term foster placements and adoptions on the basis of race. *fn9"

 The plaintiffs, in their complaint, further allege that neither the Department nor the CSS provided the plaintiffs, as required by Pennsylvania law, with 15 days written notice of the decision to move the child to a new foster home nor of their right to appeal that decision to a state administrative agency, to wit, the Commonwealth of Pennsylvania Department of Public Welfare, see 55 Pa. Code § 3700.73, within 15 days of receiving such notice. The defendants do not dispute this allegation.

 In fact, the defendants admit that the "CSS did not provide the McLaughlins with 15 days' written notice of the decision to move Raymond [Bullard] to a new foster home nor of their right to appeal that decision to a state administrative agency within 15 days of receiving such notice." Defendants' Answer to Plaintiffs' Complaint, at p.3, para. 18. However, the defendants take the position that they "had no legal responsibility to provide notice to the McLaughlins, who were serving as foster parents for CSS." Id.

 On November 21, 1985, a dispositional review hearing was held before Master Shawn Lacy Jackson, Court of Common Pleas of Philadelphia County, Family court division, in accordance with state law, see 42 Pa. C.S. § 6341, to review Raymond's placement with the Williams family. Master Jackson approved the placement.

 On February 25, 1986, the plaintiffs commenced an action in the Court of Common Pleas of Philadelphia County, Family court division before the Honorable Harvey N. Schmidt. Plaintiffs commenced this action by filing a Petition for Return of Foster Child (hereinafter "Petition for Return of Foster Child" or "petition") with the Family court division. The plaintiffs' petition was entered on the Family court division's dependency petition docket and was assigned Dependency Petition # 2011-83-10. See Defendants' Motion to Dismiss Complaint or in the alternative for Judgment on the Pleadings, at Exhibits A & B.

 The plaintiffs filed timely exceptions to Judge Schmidt's Order of July 10, 1986. See Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss Complaint or in the Alternative for Judgment on the Pleadings, at Exhibit C (Exceptions of John and Marilyn McLaughlin to the Court's Order of July 10, 1986). *fn10" By agreement of counsel, the Department was granted an indefinite extension of time to respond to plaintiffs' exceptions, in order that an independent psychiatric evaluation of Raymond Bullard might occur and perhaps obviate the need for any further litigation.

 Eileen Bazelon, M.D., a child psychiatrist, was mutually chosen by the parties to conduct a professional evaluation of how Raymond Bullard would be affected psychologically by a return to his original foster parents. Doctor Bazelon, after reviewing reports of earlier evaluations and conducting her own evaluation of Raymond Bullard, in a report dated November 24, 1986 stated that, "Raymond Bullard suffered a clinical depression of childhood since leaving the McLaughlins", and that ". . . the childhood depression he is now experiencing . . . has significantly interfered with his current functioning and level of achievement . . .". Doctor Bazelon further related that it was her professional opinion that, "Raymond Bullard should return to the McLaughlin's home . . . . If he is not returned . . . he will continue to be clinically depressed and speech will continue to be delayed." See Plaintiffs' Complaint, at Exhibit A. *fn11"

 After the results of Dr. Bazelon's evaluations were obtained, counsel for the Department notified plaintiffs' counsel that the Department nevertheless believed that Raymond Bullard should remain in his current foster home. *fn12" Thereafter, the instant action for the alleged deprivation of plaintiffs' civil rights was filed with this Court.

 In this Court, the plaintiffs claim, inter alia, that Raymond Bullard was removed from their foster care solely on the basis of race. Moreover, plaintiffs claim that this removal was accomplished pursuant to Department policy and with the Department's knowledge and approval. *fn13"

 Accordingly, the plaintiffs claim that the defendants' actions violate their right to the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Thus, plaintiffs' state a claim cognizable under 42 U.S.C. § 1983.

 The plaintiffs also claim that Pennsylvania law creates a right and interest in foster parents not to have their relationship with a foster child arbitrarily, capriciously and unlawfully disrupted. Plaintiffs claim that the defendants deprived them of this state-created right in violation of their right to due process of law under the Fourteenth Amendment to the United States Constitution.

 Finally, the plaintiffs' complaint states a cause of action under Pennsylvania law for the intentional infliction of emotional distress.

 The plaintiffs request this Court to:

 
(1) declare the defendants' policy removing children from foster families solely on the ground of race unconstitutional.
 
(2) enjoin the continuation of this practice; *fn14"
 
(3) order the defendants to take all action necessary to return Raymond Bullard to the foster care of the McLaughlins; and
 
(4) order defendants to pay $ 500,000 in compensatory damages and $ 500,000 in punitive damages, as well as reasonable attorney fees.

 Presently, the defendants claim in this Court, relying upon both the res judicata and the Younger comity doctrines, that the plaintiffs' complaint should be dismissed. The Court will now address the defendants' contentions.

 II. RES JUDICATA

 The defendants argue that the July 10, 1986 Order entered by Judge Schmidt in the Family court division, Court of Common Pleas, denying plaintiffs' Petition for Return of Foster Child, precludes plaintiffs' from bringing their action in this Court by virtue of the res judicata doctrine.

 The doctrine of res judicata operates to bar decision by a court of a cause of action or claim which another court of valid jurisdiction has already decided. Husbands v. Commonwealth of Pennsylvania, 395 F. Supp. 1107, 1130 (E.D. Pa. 1975) (Newcomer, J.); See Mattas v. Supreme Court of Pennsylvania, 576 F. Supp. 1178, 1184-85 (W.D. Pa. ...


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