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McComb v. Wambaugh

argued: March 11, 1991.

DAVID F. MCCOMB, AS GUARDIAN AD LITEM FOR KHEMSU WALTON, A MINOR CHILD, APPELLANT
v.
ROSITA WAMBAUGH, SUPERVISOR, PHILADELPHIA DEPARTMENT OF PUBLIC WELFARE; JEAN SUMMONS, SOCIAL WORKER, PHILADELPHIA DEPARTMENT OF PUBLIC WELFARE, CHILDREN AND YOUTH AGENCY; MURRAY SKLAR, SOCIAL WORKER, PHILADELPHIA DEPARTMENT OF PUBLIC WELFARE, CHILDREN AND YOUTH AGENCY; CITY OF PHILADELPHIA; IRENE PERNSLEY, COMMISSIONER OF PHILADELPHIA DEPARTMENT OF PUBLIC WELFARE; PETER DIGRE, DEPUTY COMMISSIONER OF PHILADELPHIA COUNTY CHILDREN AND YOUTH AGENCY; GORDON WEST, DEPUTY COMMISSIONER OF PHILADELPHIA COUNTY CHILDREN AND YOUTH AGENCY; WILBUR HOBBS, DEPUTY COMMISSIONER OF PHILADELPHIA COUNTY CHILDREN AND YOUTH AGENCY, APPELLEES



Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 86-03954.

Mansmann, Hutchinson and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge

As a result of parental abuse, the minor plaintiff suffered severe injuries for which he seeks damages against a municipality and its employees because of their failure to protect him. We conclude that a protective order issued by a Virginia court purportedly in accordance with the Interstate Compact for Placement of Children did not establish a special relationship between the plaintiff and the Pennsylvania defendants. Because a private individual caused the harm and no special relationship existed, the district court granted summary judgment for the defendants. We will affirm.

Khemsu Walton was born in Philadelphia in 1980. Two weeks later he, his siblings, and mother, Marie Walton, were all injured in an automobile accident in Virginia. When taken to the hospital, the children were found to be suffering from malnutrition. After an investigation by Virginia social welfare agencies, the Domestic Relations Court of Halifax County, Virginia removed the children from their mother's custody and placed them in the temporary custody of the Halifax County Department of Social Services. Following partial recovery from her injuries, Marie Walton, but not the children, returned to her Philadelphia home. The Halifax Court later placed Khemsu in foster care with his aunt and uncle in Virginia.

Ms. Walton maintained contact with the Halifax court and petitioned for the return of her children or, in the alternative, maintenance of the children's previous diet. One year after the automobile accident, Halifax County sought information for a forthcoming hearing on Ms. Walton's petitions. Pursuant to the Interstate Compact on the Placement of Children, to which Pennsylvania and Virginia are parties, the County social workers submitted a request for information through the Commonwealth of Virginia's Interstate Placement Specialist. In turn, that official requested that her counterpart in the Pennsylvania Department of Welfare contact the appropriate Philadelphia agency for an evaluation of the Walton home after an unannounced visit.

The Philadelphia Department of Public Welfare was given the responsibility for providing the necessary information. Defendant Jean Summons, a social worker employed by the Department, interviewed Marie Walton and according to Department procedure, but contrary to Virginia's wishes, made an announced visit to the Walton home. After that investigation, Summons and her supervisor, defendant Rosita Wambaugh, reported to Pennsylvania's Compact Administrator that they "would approve of the children being returned to their mother."

On October 20, 1981 the Halifax Court directed that "custody" of Khemsu's three oldest siblings be "returned" to Marie Walton "but under supervision of the Department of Social Services for the City of Philadelphia, which department shall make at least bi-monthly unannounced visitations of the home." The order also asked Philadelphia to file a progress report within six months so that the court could determine whether to return custody of the two youngest children to their mother.

Although the Virginia authorities had requested unannounced visits to the Walton home, the Philadelphia Department's policy called for prearranged home visitation. Over the next eight months, Summons made two announced visits and found the home in satisfactory condition, the children healthy and attending school. In April 1982, Summons wrote to the Virginia Court stating that she had spoken with Marie Walton and that because she had demonstrated the capability to care for her children, Philadelphia would support the mother in her desire to reunite her family.

On April 27, 1982 the Halifax Court ordered that custody of Khemsu and his brother "is hereby returned to their mother, Maria[sic] Walton, but under continuing supervision of the appropriate Department of Social Services in Philadelphia, Pa." On the same day, the judge signed an Interstate Compact Application Child Placement Request for each of the five children. The documents purported to "place" the children with their mother and requested quarterly reports from the receiving agency. A social worker from Virginia then accompanied Khemsu and his brother on the trip to Philadelphia and left them with Ms. Walton at her home.

On May 27, 1982, the Pennsylvania Compact Administrator advised her Virginia counterpart that Pennsylvania had approved the placement requests. She noted, however, that Pennsylvania would provide a six-month report on the Walton children instead of the quarterly reports Virginia had requested.

On October 22, 1982 and February 24, 1983 the Halifax County social worker asked for the Compact Administrator's progress reports. In response to these requests, defendant Summons notified Pennsylvania's Compact Administrator that Ms. Walton refused to cooperate and would not permit a home visit. In her letter, Ms. Summons concluded "if Virginia wants us to make another attempt to investigate Ms. Walton, please have them notify us in writing."

A copy of the letter was also sent to the social worker in Halifax County. Apparently nothing further was done by either the Philadelphia or Virginia authorities.

On August 17, 1984 Ms. Walton brought four-year old Khemsu to a hospital in Philadelphia. He weighed 13 pounds and was in a comatose condition. As a result of malnutrition, he has suffered irreversible brain damage.

Ms. Walton plead guilty to criminal charges arising out of her failure to provide properly for Khemsu. The child now lives in foster care.

Khemsu's hospitalization occurred more than two years after he was returned to his mother, and more than fifteen months after Philadelphia's last correspondence with Virginia.

Khemsu's guardian ad litem filed suit in the district court seeking damages under 42 U.S.C. ยง 1983. The complaint names the City of Philadelphia and various employees of the Department of Public Welfare as defendants, charging that they failed to evaluate properly Marie Walton's capacity to care adequately for her children, failed to perform visits as required by the Compact and the Virginia court order, and displayed deliberate indifference to Khemsu's constitutional rights.

The district court concluded that any custodial relationship between the Halifax Department of Social Services and Khemsu was terminated on April 27, 1982 by the Virginia court order of that date. Thereafter, because Khemsu was in the care and custody of his mother, the Virginia order did not create a special or custodial relationship. In addition, the Interstate Compact created no entitlement to or liberty interest in being free from his mother's mistreatment. The court decided, therefore, that DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), required the entry of summary judgment for all defendants.

On appeal, plaintiff contends DeShaney is inapposite; that defendants adopted and implemented policies deliberately indifferent to the constitutional rights of children whom the agency was charged to protect; that the Interstate Compact and the Virginia court order imposed duties on the Philadelphia Department that established a special relationship with Khemsu; that the Philadelphia Department played an active role in the creation of the danger to Khemsu; and finally, that the Department's practices violated the Equal Protection Clause.

Defendants assert that DeShaney governs the case; that the plaintiff's injuries were caused by a private individual, not a state actor; that neither the Interstate Compact nor the Virginia court order imposed legal duties on the defendants; that defendants' actions or inactions in no way caused Khemsu's injuries; and that the state-created distinction between supervision of children returned to ...


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