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June 30, 1995

MALINDA WALKER, on her own behalf and on behalf of her minor children Alexis Larabee and Lydia Walker, Plaintiff
JAMES P. JOHNSON, ESQUIRE, et al., Defendants

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 June 30, 1995


 Plaintiff Malinda Walker filed this section 1983 action on behalf of herself and her minor children Alexis Larabee, aged 4 years, and Lydia Walker, aged 23 months. Plaintiff alleges that her constitutional rights and those of her children were violated by Centre County, Pennsylvania officials and employees.

 Named as defendants are: James P. Johnson, Esq., attorney for Children and Youth Services of Centre County (CYS); Terry Watson, director of CYS; Donna Allar, case worker supervisor for CYS; Leslie Young, case worker supervisor for CYS; Monica Patterson, caseworker for CYS; Mary I. Dauberman, case worker for CYS; Jennifer A. Culhane, case worker for CYS; Lisa Rice, case worker for CYS; Colleen Smith, case worker for CYS; and Thomas and Norma Flickinger, foster parents allegedly acting under the supervision of CYS. *fn1" All defendants are sued in their individual and official capacities. Plaintiff alleges that at all relevant times each was acting under color of state law.

 According to plaintiff's allegations, her minor children, Alexis and Lydia, were adjudicated dependent, *fn2" taken into the custody of CYS and placed, under the foster care program, in the care and custody of Thomas and Norma Flickinger. (Plaintiff's complaint, PP 3-12).

 Walker alleges that while in the care of the Flickingers, her children have accompanied the Flickinger family to Protestant religious services against her wishes. In her words, Walker alleges that her children have been compelled to attend a "Fundamentalist, evangelical, Christian Church selected by the foster family and approved by CYS" over her objections.

 In documents filed subsequent to the complaint initiating this action, plaintiff states that she follows Judaism and wishes to have her children indoctrinated in that religion and to follow its teachings.

 Plaintiff further alleges that defendants' conduct has caused irreparable harm to her and her children for which there is no adequate remedy at law. Plaintiff seeks, on that basis, a temporary restraining order, a preliminary injunction and a permanent injunction "directing the Defendants to refrain from promoting any religion, to refrain form (sic) taking the children to church and to make only netural (sic) mention of any and all religion in the presence of the children. And to likewise enjoin the Defendants from any retalitaion (sic) of retrubution (sic) directed at the plaintiffs." (Plaintiff's complaint, p. 10, P 3)

 In an order and memorandum dated November 23, 1994, this court dismissed all claims except plaintiff's First Amendment claim and her state law claim for the alleged theft of her breast milk as legally frivolous under 28 U.S.C. § 1915(d) and Neitzke v. Williams, 490 U.S. 319, 324, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989).

 Before the court are: 1) a Rule 12(b) motion by defendants Watson, Allar, Young, Patterson, Dauberman, Culhane, Rice and Smith to dismiss plaintiff's complaint for failure to state a cause of action and for lack of federal subject matter jurisdiction (record document no. 11); 2) a Rule 12(b) motion by defendant Johnson to dismiss plaintiff's complaint for failure to state a cause of action and for lack of federal subject matter jurisdiction (record document no. 12); 3) a Rule 12(b) motion by defendants Thomas and Norma Flickinger to dismiss plaintiff's complaint for failure to state a cause of action (record document no. 19); and 4) a motion by defendants for default judgment (record document no. 21).

 Defendants move in their Rule 12(b) motions, in the alternative, for summary judgment, Fed. R. Civ. P. 56. For the reasons which follow, we will consider all three motions as motions for summary judgment and will enter an order 1) granting all three motions, 2) entering judgment in favor of defendants and against plaintiff on plaintiff's First Amendment Claim, the sole remaining federal claim, 3) dismissing without prejudice the remaining state law claim, and 4) denying, as procedurally inappropriate, the remaining motion for default filed by defendants.


 Summary judgment standard

 Rule 12(b) provides that if matters outside the pleadings are presented to, and not excluded by the court in hearing a motion under Rule 12(b)(6), the motion can be treated as one for summary judgment and disposed of as provided in Rule 56 so long as the parties are "given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 56. The parties were notified in our order dated May 30, 1995 that defendants' motions would be disposed of as motions for summary judgment, and plaintiff was given additional time to file briefs and supporting documents in opposition to defendants' outstanding motions.

 Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)

...The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing...that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 323 and 325.

 Issues of fact are "'genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3rd Cir. 1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3rd Cir. 1988).

 Pennsylvania Child Dependency Procedures

 Because plaintiff's allegations center, in part, on the consequences and significance of an adjudication of dependency, some background on that issue will be helpful. Under the Pennsylvania Juvenile Act, a "dependent child" is defined as one who "is without proper parental care or control...or other care or control necessary for his physical, mental, or emotional health or morals." 42 Pa. Cons. Stat. Ann. § 6302(1). The party petitioning for an adjudication of dependency must prove by clear and convincing evidence that the child is presently without proper parental care and that such care is not immediately available. In re S.M, 418 Pa. Super. 359, 614 A.2d 312 (Pa.Super. Ct. 1992) and In re Justin S., 375 Pa. Super. 88, 543 A.2d 1192 (Pa.Super. Ct. 1988). Such a finding must be supported by testimony that is "so clear, direct, weighty, and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In re Justin S., 543 A.2d at 1197. In such matters, the courts attempt to strike a balance between the state's interest in protecting the child from potential harm and the rights of the parents. Safeguards, including stringent evidentiary requirements, are in place to guard against the possibility that overly zealous state employees may seek and obtain an adjudication of dependency in cases which do not warrant such drastic action.

 Once a child is adjudicated dependent, significant consequences follow. Legal custody of that child then vests in the state, albeit on a temporary basis, with the ultimate goal usually being reunification of the family. The Court of Common Pleas for the jurisdiction where the child resides or is present is then authorized to determine where and with whom that child will reside based upon an assessment of the child's best interests. The alternatives available to the court include: 1) allowing the child to continue residing with his or her parents under conditions prescribed by the court; or 2) transferring temporary legal custody of the child to a private or public agency. 42 Pa. Cons. Stat. Ann. § 6351.

 Even though an adjudication of dependency has been made, the child may be removed from the custody of his or her parents only in cases where there is a clear necessity for removal. Once such a determination has been made, the court will award custody based upon the best interests of the child. In re Bennage, 303 Pa. Super. 318, 449 A.2d 707, 708 (1982).

 The county children and youth service agency is responsible for formulating a "family service plan" for the child. 55 Pa.Code § 3130.61 (1987). That requires the agency to identify an ultimate goal for the child including return home, placement in the home of another relative, adoption, placement with legal guardian, independent living, and long-term placement. See: In re M.B., 388 Pa. Super. 381, 565 A.2d 804 (Pa.Super. 1989), appeal denied, 589 A.2d 692 (Pa. 1990).

 Periodic review hearings are then conducted at six-month intervals to determine "whether placement continues to be best suited to the protection and physical, mental and moral welfare of the child." 42 Pa. Cons. Stat. Ann. § 6351(e). After a certain period, such review years are conducted on a yearly basis. Id.

 At the review hearing, the court considers: 1) the continuing necessity for and appropriateness of the placement; 2) the extent of compliance with the service plan developed for the child; 3) the extent of progress made toward alleviating the circumstances which necessitated the original placement; 4) the appropriateness and feasibility of the current placement goal for the child; and 5) a likely date by which the goal for the child might be achieved. 42 Pa.Cons.Stat.Ann. § 6351(f). On the basis of these considerations, the court then determines whether the child should be returned to his or her parents, continued in placement for a specified period, or remain in placement on a permanent or long term basis. The court shall "order continuation, modification or termination of placement or other disposition best suited to the protection and physical, mental and moral welfare of the child." 42 Pa.Cons.Stat.Ann. § 6351(g).

 Plaintiff's religious background

 Documents filed in connection with the pending motions establish the following: When plaintiff's children were first adjudicated dependent and placed in foster care in January, 1993, Walker did not express allegiance with any particular religion and, in fact, purported to be an agnostic. No request was expressed to CYS that her children be placed in a household which followed a particular religion or none at all.

 Few potential foster parents were qualified to care for Walker's children because of the youngest child's medical needs. When the children were placed in foster care, Lydia was only two months old and suffered from a condition known as apnea which required her to wear a heart monitor. It was important that she reside with a family who lived in relatively close proximity to the Centre County Hospital in State College should a medical emergency arise, that she reside with foster parents who had been trained in Cardiac-Pulmonary Resuscitation (CPR) and who could be relied upon to monitor her condition and take immediate responsive action should a problem arise. The Flickingers were the only family on CYS' list of available foster parents who fulfilled all of these requirements.

 Lydia's health was, at the time of placement, a paramount consideration and overrode all other considerations. Moreover, at the time of placement, religion was not a consideration in the choice of foster families, since their mother had not avowed a connection with any religion or expressed any preference that her children be raised in a particular faith. CYS has a policy consistent with Pennsylvania regulations of attempting to place children in a home of the same faith as their natural parents, if that is possible and if a ...

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