The opinion of the court was delivered by: DITTER
DITTER, UNITED STATES DISTRICT JUDGE.
In this civil rights action, plaintiffs seek damages for the termination of their relationship with their married, adult son, allegedly killed by the police. Defendants move to dismiss on the grounds that the complaint fails to state a claim for which relief can be granted. For the reasons that follow, I will deny defendants' motion.
Plaintiffs also allege that defendants did not undertake a complete investigation and conspired to cover up the circumstances of their son's death. These actions deprived plaintiffs of their right to redress the violation of their constitutional rights.
In their motion to dismiss, defendants assert that in this circuit parents of a married, adult child do not have a constitutionally protected right to companionship or association regardless of how close parents and child may be.
The courts of appeals are split on whether parents can recover in a civil rights action for the deprivation of their right to association or relationship with an adult child. Compare Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986) (parent can recover); Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th Cir. 1985); Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984) with Harpole v. Arkansas Dept. of Human Services, 820 F.2d 923 (8th Cir. 1987) (parent does not have a protectable interest); Ortiz v. Burgos, 807 F.2d 6 (1st Cir. 1986). Even among the courts that have recognized this right, there is disagreement over its constitutional underpinnings. Most courts hold that a parent's right to association and companionship with a child is a substantive due process right, e.g., Bell, supra ; however, the Tenth Circuit has concluded that this right arises from the first amendment right to freedom of intimate association. Trujillo, supra.
In support of their position that a parent has no constitutional right to companionship with an adult son in this circuit, defendants rely on several district court decisions: See Gann v. Schramm, 606 F. Supp. 1442 (D.Del. 1985); Baffa v. Black, 481 F. Supp. 1083 (E.D. Pa. 1979); Strickland v. City of Easton, No. 75-93 (E.D. Pa. Oct. 27, 1976). These decisions are exemplified by the following statement in Baffa :
To the extent that the defendants are asserting that the death that befell Alfred J. Baffa, Jr., vests no federal claim in John Baffa as an individual, whatever John Baffa's relationship to Alfred J. Baffa, Jr. may have been, defendants are on sound ground.
481 F. Supp. at 1085 (emphasis added). These cases rely on a Third Circuit holding that a father who unlawfully took his children from their mother failed to plead a deprivation of his constitutional rights when state officials returned the children to her. Denman v. Wertz, 372 F.2d 135 (3d Cir.) (per curiam), cert. denied, 389 U.S. 941, 19 L. Ed. 2d 293, 88 S. Ct. 300 (1967).
Only one reported decision in this district has held that a parent can seek redress for a total deprivation of the parental relationship, Jones v. McElroy, 429 F. Supp. 848 (E.D. Pa. 1977) (Luongo, J.). In Jones v. McElroy, the court concluded that Denman was distinguishable because there the father did not have lawful custody and was not completely deprived of the parental relationship.
These cases all preceded the Third Circuit's decision in Estate of Bailey by Oare v. County of York, 768 F.2d 503 (3d Cir. 1985). In Bailey, a father sought damages for termination of his constitutional rights caused by the death of his child. The court's opinion focused on the circumstances in which a public agency or official has a duty to protect individuals who are not in their custody; however, the court did recognize the father's liberty interest "in preserving the life and safety of his child from deprivations caused by state action . . . ." Id. at 509 n.7. The court continued
[we] follow the Seventh Circuit's decision in Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), in holding based on these precedents that a parent whose child has died as a result of unlawful state action may maintain an action under § 1983 for the deprivation of liberty. Id. at 1242-45, 1251-53.
Id. In light of Bailey, the Bell decision, not the prior district court decisions in this circuit, reflects Third Circuit law on parents' constitutional right to ...