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March 24, 1994

WENDY H., a minor, by and through her next friend, ANNA SMITH

The opinion of the court was delivered by: ANITA B. BRODY


 I find that the city worker's duty of care requires that she substantially comply with minimum standards of "professional judgment." I also find that the plaintiff has introduced sufficient evidence that the defendant worker's conduct violated that standard to create a material issue of fact for the jury.

 I. Facts

 The following facts are either undisputed by the plaintiff and the moving defendants -- the City of Philadelphia, DHS, and Joyce Finney -- or must be treated as true in order to decide the motion for summary judgment. The plaintiff Wendy H. was born on August 2, 1980. After several years, her parents left her and her older brother Alonzo H. in the care of her grandfather. Deposition of Joyce Finney at 22. In June or July of 1987, the City of Philadelphia, acting through its Department of Human Services (DHS) took protective legal custody over both children and placed them in foster care. Finney at 88. In September of 1987, both children were removed from their initial placement and placed in the home of Elizabeth and William Mitchell. Plaintiff's Exhibit 1.

 The City carried out the foster care arrangements of Wendy and Alonzo H. by relinquishing them to the physical custody of the Women's Christian Alliance (WCA) which then made the placement into the foster home. Finney at 10. The City maintained legal custody over the children. Id. The City compensated WCA for providing foster care services, and WCA in turn compensated foster parents such as the Mitchells for providing foster homes. Defendants' Exhibit B. The City maintained the responsibility under state statute for "the care, protection, training and education, and the physical, mental, and moral welfare of the child." 42 Pa. Cons. Stat. Ann. § 6357.

 Hattie Reeves was the DHS worker originally assigned to supervise and monitor the placement of Wendy H. Finney at 8,11. In August of 1988, about a year after the plaintiff had been placed in the Mitchell's home, Defendant Joyce Finney replaced Reeves as the DHS worker assigned to Wendy H's case. Finney at 8. Finney has been a DHS social worker since November, 1986. Finney at 13.

 The plaintiff's file provided to Finney by Reeves when Finney took over the case included a case summary and an ongoing social work narrative of the plaintiff's foster placement. Defendants' Exhibit F. Finney read the one page summary, but did not read the social work narrative. Finney at 19, 28.

 The one page report indicated that the plaintiff had been sexually abused in the past. Finney at 40. The social work narrative, which Finney did not read, included a July 27, 1988 log entry which indicated that the plaintiff had been sexually abused by her brother Alonzo H. previous to the time when the two were placed together in foster homes. Defendants' Exhibit F.

 DHS provides a manual to its workers entitled Protective Services Investigation Decisions Handbook. Plaintiff's Exhibit C. That manual contains a risk assessment tool that identifies, "factors which experience has shown to be associated with child abuse/ neglect risk and severity." Exhibit C. at 3-20. The manual identifies the following factors as creating a high risk of future abuse: when there is a history of previous sexual abuse suffered by the victim; when the original perpetrator is under sixteen years of age the victim is at high risk to be abused by the same perpetrator again; and when a previous abuser has constant access to the victim by living in the same home. Plaintiff's Exhibit C at 3-B.

 The manual further states that

In a case involving sexual abuse, the factor of "Perpetrator Access to Child" would warrant major consideration, and "Complete Access to the Child" might be sufficient reason for the [social] worker to seek a protective custody arrangement for the child; or a court order removing the perpetrator from the home, even though most of the other factors may be at the low end of the risk continuum.

 Exhibit D at 3-26.

 The manual also required Finney to visit and speak privately with the plaintiff every six months. Finney at 107.

 WCA assigned a social worker, Curtis Bogans, to the plaintiff. Finney at 34. Pursuant to state law, Bogans was required to make a home visit to the plaintiff's home once a month. Bogans II at 91. Bogans and the WCA sent Finney and DHS Quarterly Reports and Individual Service Plans for the plaintiff. Defendants' Exhibit I and J. Finney acknowledges not having read many of the reports sent by Bogans. Finney at 65. She also acknowledges her failure to participate, as required by the DHS Operations Manual, in bi-annual Individual Service Plan meetings; she attended only one during the time she handled the plaintiff's case. Finney at 65-66.

 From the time Finney took over the plaintiff's placement in August of 1988 until June of 1990 when plaintiff was removed from the Mitchell's home and placed with an aunt, Finney visited with the plaintiff three times, on September 21, 1988, on August 11, 1989, and on May 25, 1990. Finney at 43, 67.

 In late 1988, the Mitchell's teenage son Dana began sexually abusing the plaintiff. Deposition of abuse investigator Emory Ellis at 32, 39, 43. The abuse included both vaginal and anal rape and continued throughout the almost two more years in which the plaintiff lived in the Mitchell's home. Id. In August of 1989, the plaintiff reported the abuse to Mrs. Mitchell and Bogans. Finney at 94, 97. Neither took action. Bogans did not inform Finney or anyone else at DHS about the plaintiff's reports of sexual abuse. Bogans II at 82. At some point, Alonzo H., the plaintiff's brother, participated in the sexual abuse. Ellis at 36, 45.

 When Finney made her visit to the Mitchells on August 11, 1989, both the plaintiff and her brother reported being hit by Mrs. Mitchell. Finney reported these complaints to Bogans and shortly thereafter asked him to investigate. Bogans I at 118. Finney asserts that such complaints were never made by Wendy H., Finney at 53, 56; however, her account is contradicted by Bogans' testimony regarding Finney's call urging investigation of the complaints. Bogans I at 118. According to Bogans, Mrs. Mitchell acknowledged striking the plaintiff on only one occasion. Bogans I at 126-27. Bogans eventually determined that the claims of abuse were false. Bogans II at 13. No further action was taken by Bogans or Finney on this issue.

 During the period when the plaintiff was being sexually abused, she began to manifest behavior problems. Bogans I at 71. Bogans specifically recorded an incident in which the plaintiff destroyed audio tapes belonging to Mr. Mitchell. Id. Bogans reported this behavior to Finney. Bogans I at 92; Bogans II at 26.

 The behavior problems motivated Bogans to have the plaintiff evaluated by a psychiatrist, a fact of which Finney was aware. Bogans II at 92. The evaluation, which was completed in February, 1989, recommended out-patient therapy. Plaintiff's Exhibit E. Neither Bogans nor Finney ever obtained a copy of the evaluation, and the plaintiff never entered therapy. Bogans I at 80-83.; Finney at 80.

 The plaintiff's behavior problems continued throughout 1989. Bogans I at 94, 105. Bogans described her as "anti-authority" and violent towards smaller children. Bogans I at 94, 97-98. She behaved poorly in school, resulting in three suspensions. Bogans I at 105. The school problems were reported to Finney. Bogans I at 114-15. Finney in her deposition asserted that she did not know of the plaintiff's problems in school or other behavior problems which appear in Bogans' reports. However, in a report which she ...

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