In so holding, I am not unmindful of countervailing considerations. It is vitally important that social workers retain their independence in deciding whether to remove children from potentially abusive environments. In fact, Pennsylvania, recognizing that children facing immediate risk of abuse are in need of emergency intervention, has explicitly authorized social workers, in conjunction with the police, to remove children from situations of imminent danger. See supra note 2.
Nonetheless, absolute immunity remains "the rare exception" to the rule of qualified immunity. Meyers, 812 F.2d at 1158; see also Butz, 438 U.S. at 478 (absolute, rather than qualified immunity is available only in "those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business"). I am not persuaded that a social worker's inability to be "absolutely certain" about emergency decisions is sufficient ground for departing from this general presumption. Mazor, 637 F. Supp. at 334. Qualified immunity confers adequate protection for officials who make "mere mistakes in judgment." Butz, 438 U.S. at 507. Only when an official violates clearly established rights of which the official should have been aware is the official subject to a federal damages action under the qualified immunity standard.
2. Qualified Immunity
The remaining question with respect to Mr. Mason is whether the plaintiffs have alleged a violation of a clearly established right of which Mr. Mason should have been aware. The plaintiffs base their claims on the Fourteenth Amendment, alleging violations of both procedural and substantive due process.
Procedural Due Process
To state a procedural due process claim against Mr. Mason, plaintiffs must allege that he deprived them of a constitutionally protected liberty or property interest without the benefit of constitutionally required procedures. Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). In deciding what process is due, courts are to weigh the incremental value of additional procedures against their costs. Although persons may ordinarily expect an opportunity to be heard prior to an adverse governmental decision regarding a substantial interest, post-deprivation process is appropriate where countervailing state interests are of an unquestionably strong nature and pre-deprivation process would insufficiently protect those countervailing interests. See, e.g., Mackey v. Montrym, 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979).
Plaintiffs do not seem to argue that the procedural safeguards afforded by the statutory authority under which Mr. Mason operated, 42 Pa.C.S.A. § 6301 et seq., are constitutionally inadequate. Indeed, it seems clear that the post-deprivation process contemplated by the statute -- a hearing within seventy-two hours of a child's removal from her family's custody -- affects a constitutionally-sufficient balance of the strong interest of parents in the custody of their children and the risk of erroneous interference with that custody, on the one hand, and the state's interest in protecting minors from a potentially abusive environment, on the other. See, e.g., In Re Scott County Master Docket, 672 F. Supp. 1152, 1169-70 (D. Minn. 1987) (stating that "in a child removal context, post-deprivation remedies may be particularly appropriate"); see also Fitzgerald v. Williamson, 787 F.2d 403, 408 (8th Cir. 1986) (finding that defendants' failure to provide parents with a hearing prior to reducing visits with their child did not violate procedural due process given the availability of post-deprivation process).
Plaintiffs' procedural due process claim seems to turn on Mr. Mason's alleged failure to inform the Court of Common Pleas of plaintiffs' request for a continuance. Plaintiffs argue that Mr. Mason should have presented the continuance request at the April 16, 1987 hearing, which was held the day after Nancy was removed from her family. This claim lacks merit. Procedural due process does not require a social worker to serve as an advocate on behalf of parents suspected of child abuse. Procedural due process is satisfied by the " opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965)) (emphasis added). Plaintiffs had an obligation to make full use of their opportunity to be heard following the removal of Nancy from their custody. If, as they allege, they were not able to attend the hearing provided for their benefit, they alone had the responsibility of communicating their difficulty.
To hold otherwise would place an onerous time burden on social welfare agencies. On the one hand, they would be obligated, as they are in any event, to ensure that a hearing is held sufficiently soon after a child's removal to comport with due process. On the other, they would be obligated to ensure that the hearing is not held too soon after the removal to inconvenience the parents, or they would then incur the additional responsibility of explaining the parents' absence. The requirements of procedural due process do not impose such a burden.
Accordingly, plaintiffs have not stated a procedural due process claim against Mr. Mason.
Substantive Due Process
Substantive due process protects the fundamental rights of parents in the care, custody and management of their children. Rinderer v. Delaware County Children and Youth Services, 703 F. Supp. 358, 361 (E.D. Pa. 1987); Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Ruffalo v. Civiletti, 702 F.2d 710, 715 (8th Cir. 1983). Courts have long held that the interest of parents in preserving the autonomy and privacy of their family is of the highest order. See, e.g., Bohn v. County of Dakota, 772 F.2d 1433, 1435 (8th Cir. 1985), cert. denied, 475 U.S. 1014, 89 L. Ed. 2d 307, 106 S. Ct. 1192 (1986) ("We can conceive of no more important relationship, no more basic bond in American society, than the tie between parent and child."). This right may be abridged only when the "demands of an organized society" outweigh the parents' interest. See Youngberg v. Romeo, 457 U.S. 307, 320, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) (quoting Poe v. Ullman, 367 U.S. 497, 542, 6 L. Ed. 2d 989, 81 S. Ct. 1752 (1961) (Harlan, J., dissenting)) (weighing, in the context of involuntary commitment to a state mental institution, the liberty interest of the committed against the relevant state interests).
To state a substantive due process claim in the context presented here -- a social worker's alleged interference with parents' custody rights -- plaintiffs must allege conduct so arbitrary and unreasonable as to "shock the conscience of the court." In Re Scott County Master Docket, 672 F. Supp. 1152, 1166 (D. Minn. 1987) (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)). In this case, plaintiffs contend that Mr. Mason's removal of Nancy solely on the basis of an uncorroborated conversation with a minister, without a showing of imminent danger, violated their substantive due process rights. Moreover, they suggest that Mr. Mason's refusals to allow Nancy to contact them after she was removed from their custody was maliciously motivated.
As to the first claim, that Mr. Mason failed to determine whether Nancy was in imminent danger prior to her removal, plaintiffs have not alleged maliciousness or outrageousness on the part of Mr. Mason sufficient to sustain a substantive due process claim. At most, plaintiffs make out a case of "excess of zeal," which does not provide a basis for a substantive due process claim. See In Re Scott County Master Docket, 672 F. Supp. 1152, 1166 (D. Minn. 1987) (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).
Plaintiffs do allege malice in their claims regarding Mr. Mason's conduct after Nancy's placement in foster care. I cannot find that these allegations are insufficient as a matter of law to sustain a substantive due process claim. The allegations are, admittedly, somewhat bare. They attribute motivations to Mr. Mason on the basis of his outward conduct, without describing explicit manifestations of malicious intent, such as statements of ill-will, which would confirm plaintiffs' suspicions. Nonetheless, on a motion to dismiss, the complaint is to be read generously. See, e.g., Labov v. Lalley, 809 F.2d 220 (3d Cir. 1987). Plaintiffs allege behavior which, if accompanied by the intent attributed to Mr. Mason, constitutes a clear violation of plaintiffs' substantive due process rights.
Accordingly, it would be premature to hold that Mr. Mason may invoke qualified immunity as a bar to plaintiffs' claims regarding this conduct. If, on a motion for summary judgment, plaintiffs fail to produce evidence that Mr. Mason's actions were in fact the result of malice rather than "excess of zeal," then Mr. Mason would be entitled to qualified immunity at the time.
Plaintiffs' Claims Against CYS
Plaintiffs allege that CYS maintains "an unofficial policy that parents suspected of child abuse may be denied custody and visitation with their child prior to a hearing to determine if the child has been abused in situations where there is no imminent danger to the child." Plaintiffs' Memo, at 15. The basis of this allegation is plaintiffs' communication with an unnamed individual "who had suffered similar injuries by Defendants." Id.
For the reasons identified above, these allegations are insufficient to sustain a substantive due process claim.
Plaintiffs' claims against Mr. Mason based on his decision to initiate dependency proceedings on behalf of Nancy Fanning are barred by Mr. Mason's absolute immunity for actions within his prosecutorial role. Hence, plaintiffs' claims predicated on Mr. Mason's initiation of proceedings will be dismissed. Plaintiffs' allegations regarding Mr. Mason's failure to relay to the Court of Common Pleas the reason for plaintiffs' absence at the dependency proceedings are insufficient to state a procedural due process claim. Accordingly, claims based on such allegations will be dismissed. Plaintiffs' allegations regarding Mr. Mason's removal of Nancy from her parents' home prior to initiating proceedings, as well as plaintiffs' claim against CYS for sanctioning such conduct, are insufficient to sustain substantive due process claims. Accordingly, claims based on these allegations will also be dismissed. Finally, plaintiffs have minimally alleged malicious interference of clearly established constitutional rights with respect to Mr. Mason's conduct after Nancy was placed in foster care. Defendants' motion to dismiss will be denied as to these allegations.
These rulings are reflected in an accompanying Order.
Defendants' Motion to Dismiss is GRANTED with respect to plaintiffs' claims based on defendants' initiation of dependency proceedings, defendants' failure to relay to the Court of Common Pleas the reason for plaintiffs' absence at the dependency proceedings, and defendants' removal of Nancy Fanning from her parents' home prior to initiating proceedings. Defendants' Motion to Dismiss is DENIED with respect to plaintiffs' claims regarding Mr. Mason's conduct after Nancy was placed in foster care. Because all claims against Montgomery County Children and Youth Services ("CYS") are dismissed, defendants' Motion to Dismiss plaintiffs' punitive damage claims against CYS is DENIED as moot.