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YOUNG v. FRANCIS

September 27, 1993

JAMES EDWARD YOUNG and JOAN YOUNG, Individually, as Husband and Wife, and as Administrators of the Estate of Allan Schreffler a/k/a James Edward Young, Plaintiffs,
v.
HELEN FRANCIS, KATHY HUME, H. SCOTT CAMPBELL, DR. ALBERT LEHMICKE, and CHILDREN & YOUTH SERVICES OF DELAWARE COUNTY, Defendants.



The opinion of the court was delivered by: LOWELL A. REED, JR.

 Reed, J.

 Sept. 27, 1993

 On December 19, 1992, plaintiffs James Edward Young and Joan Young (collectively "plaintiffs") filed claims, on behalf of themselves and as administrators of the Estate of Allan Schreffler a/k/a James Edward Young ("Schreffler" or "the child"), under 42 U.S.C. §§ 1983, 1988, arising out of the death of the child whom they intended to adopt, and alleging violations of Schreffler's and their First, Ninth and Fourteenth Amendment rights, and various state law claims under the laws of the Commonwealth of Pennsylvania against defendants Helen Francis, Kathy Hume, H. Scott Campbell, Dr. Albert Lehmicke ("Dr. Lehmicke"), and Children and Youth Services of Delaware County ("CYS").

 On May 3, 1993, I issued an order granting defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) as to plaintiffs' constitutional claims of interference with the Youngs' own personal liberty interest in a relationship with Schreffler and Schreffler's liberty interest in a relationship with them personally. I denied defendants' motion as to plaintiffs' claim for the deprivation of Schreffler's constitutional rights. Currently before me is defendants' motion for partial summary judgment as to the remaining federal claim (Document No. 14). *fn1"

 The jurisdiction of this Court is founded upon the existence of a federal question pursuant to 28 U.S.C. § 1331. This Court has supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367. Upon consideration of the motion, as well as the pleadings, affidavits and discovery of record, and for the reasons which follow, I will grant defendants' motion for partial summary judgment of the remaining federal claim. Having dismissed all of plaintiffs' federal claims, I will decline to exercise my discretion to retain jurisdiction over their state claims and, thus, will dismiss plaintiffs' state law claims without prejudice.

 II. BACKGROUND2

 Plaintiffs are residents of Drexel Hill, Pennsylvania. In 1989, they filed an application for adoption with CYS through its foster parent and adoption program. *fn3" The child, Schreffler, was placed into the custody of plaintiffs by CYS on September 27, 1990. The parental rights of Schreffler's biological parents were terminated in December 1990 and January 1991 in Delaware County, Pennsylvania. Plaintiffs filed a report of intention to adopt Schreffler on February 11, 1991.

 Defendant Dr. Lehmicke first examined the child July 18, 1990. During that examination, Dr. Lehmicke discovered that a "left-sided weakness" had been identified in Schreffler, and that he should be re-tested. Dr. Lehmicke ordered additional neurological testing of Schreffler. These additional tests were conducted by Dr. Charles B. Brill ("Dr. Brill"), Clinical Professor of Pediatrics and Neurology at Jefferson Medical College in Philadelphia, who issued a report to Dr. Lehmicke on August 9, 1990. Dr. Brill's report states: *fn4"

 
Allan Schraffler [sic] has mild bi-lateral long tract signs, left more marked than the right. In addition, he has a suggestion of a left homonymous hemianopia . . . [and] prospective adopting parents should be told of the neurologic abnormalities and be made aware of the fact that the child's future neuro-developmental prognosis is guarded.

 (emphasis in complaint).

 On August 17, 1990, a test known as an EEG was performed on the child at the request of Drs. Brill and Lehmicke. The EEG report stated that the results of this test were "probably normal; however, it is technically limited and should be repeated at no charge to the patient." Dr. Lehmicke did not order a second EEG to be performed. Dr. Lehmicke states that "based on the neurological findings, an EEG and CAT scan were ordered and were interpreted as normal, [and] that, given the child's neurological improvement, there was no indication for other or future neurologic testing at that time." Plaintiffs' reply to Dr. Albert Lehmicke's motion for summary judgment ("Plaintiffs' opp."), exhibit C at 50. The last time Dr. Lehmicke saw Schreffler was on October 10, 1990.

 Plaintiffs assert that after August 1990, defendants told them only that tests of the child produced normal results and that "everything was okay." They contend that they were never informed that an additional EEG was recommended by the electroencephalographer who performed the first EEG test, that the child suffered from neurologic abnormalities, or that the child's future neurodevelopmental prognosis was guarded. *fn5"

 Plaintiffs accepted custody of Schreffler on September 27, 1990 with the intention of adopting him. On April 1, 1991, plaintiffs found Schreffler not breathing in his crib. The child was given CPR and rushed to the Fitzgerald Mercy Catholic Medical Center in Darby, Pennsylvania. The child was then transported by Sky Flight Care to Thomas Jefferson University Hospital in Philadelphia, where he was pronounced dead on April 2, 1991. A post-mortem examination done by the medical examiner was normal except for the existence of brain swelling. The cause of death listed in the autopsy report is Sudden Infant Death Syndrome ("SIDS"), commonly referred ...


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