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GORDON v. LOWELL

April 18, 2000

WILLIAM GORDON AND KAY GORDON, PLAINTIFFS,
V.
PAM LOWELL, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS AGENT AND/OR EMPLOYEE OF THE COUNTY OF BERKS, GEORGE KOVARIE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF BERKS COUNTY CHILDREN AND YOUTH SERVICES, WEST PAGE 265 BERKS COUNTY CHILDREN AND YOUTH SERVICES, A STATE AGENCY ADMINISTERED BY THE COUNTY OF BERKS, AND BERKS COUNTY, A POLITICAL SUBDIVISION OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS.



The opinion of the court was delivered by: Van Antwerpen, District Judge.

OPINION AND ORDER

Plaintiffs William and Joy Gordon ("Plaintiffs") bring this action against Pam Lowell, in her individual and official capacity; George Kovarie, in his individual and official capacity; Berks County Children and Youth Services; and Berks County ("Defendants"). Plaintiffs allege in the Complaint, pursuant to Sections 1983 and 1985 of the United States Code, violation of the First and Fourteenth Amendments to the United States Constitution, deprivation of Due Process in violation of the Fourteenth Amendment to the United States Constitution, deprivation of counsel in violation of the Sixth Amendment, conspiracy to interfere with civil rights, and violation of civil rights; as well as state law claims including negligence, intentional infliction of emotional distress, failure to train and supervise, negligent injury and negligent failure to train and supervise.

Currently before the court are Defendants' Motions to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and alternative Motion for Summary Judgment, and Plaintiffs' responses thereto.

I. BACKGROUND

The following facts have been taken from the submissions by the parties. Because this is a consideration on a motion for summary judgment, we view the facts in the light most favorable to Plaintiffs.

Plaintiffs are grandmother and step-grandfather to V.K., a minor child born on May 6, 1986. V.K. was declared dependent pursuant to the Juvenile Act of the Commonwealth of Pennsylvania on or about March 1993, when she was seven years old. Pls' 2/1/2000 Br. at 1-2. The declaration of dependency was precipitated by the March 1993 arrest of V.K.'s mother, who had custody of V.K. at that time. Id.

Once V.K. was declared dependent, and until her adoption, Berks County Children and Youth Services ("BCCYS") had legal custody of and was responsible for her. Under BCCYS's supervision, V.K. lived with Plaintiffs from March until December of 1993. Id.*fn1 On December 23, 1993, V.K. was placed in a foster home at Plaintiffs' request. Id. Plaintiffs state that their request stemmed from "emotional and behavioral problems and the lack of guidance, supervision, and support given by any therapist or agency to Grandparents." Id. at p. 2. Thereafter, V.K. lived with foster families, including the family that ultimately adopted her.

Defendant Lowell, a licensed social worker, was V.K.'s treating therapist under the supervision of BCCYS starting in 1994. Id. at p. 3. Ms. Lowell was responsible for directing V.K.'s care and making recommendations to BCCYS based on her treatment of V.K. At some point in 1995 or 1996, therapist Lowell determined that visitations between Plaintiffs and V.K. should be suspended because they were harmful to V.K.'s therapeutic progress. Id. at 3. According to Plaintiffs, this 1995 suspension occurred "after a bitter misunderstanding between BCCYS and Grandparents." Id.

Plaintiffs allege that BCCYS actively discouraged their relationship with V.K.. They claim they were not encouraged to seek custody, and were not participants in the six-month review hearings. Id.

On October 3, 1995, Plaintiffs filed a Petition to Intervene in V.K.'s dependency case, seeking custody of the child.*fn2 Id. The Petition was filed with the Juvenile Division of the Court of Common Pleas of Berks County. Id. at Ex. B.*fn3

In 1996, with the adoption process well under way and a court prepared for a hearing on the termination of parental rights, Plaintiffs requested a neutral therapist to work with them and V.K. The court appointed therapist Lynn Mullis, who evaluated and began working with V.K. and her grandparents on November 4, 1996. Ms. Mullis recommended that the adoption of V.K. by her foster parents proceed. At no time did Plaintiffs attempt to adopt V.K. or block her adoption by the foster family. See Def. Lowell's Ex. C at pp. 51-52, 102-103.

On November 20 1998, Plaintiffs filed a complaint against Defendants, based upon 28 U.S.C.A. §§ 1983 and 1985, and including pendent state claims of claims of negligence and intentional infliction of emotional distress against Defendant Lowell. They seek compensatory and punitive damages.

II. STANDARD OF REVIEW

We have before us Defendants' motion for summary judgment.*fn4 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). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Anderson I"). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505. All inferences must be drawn and all doubts resolved in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).

On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party cannot rest on mere denials or allegations, but must respond with facts of record that contradict the facts identified by the movant. Id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see also First Nat. Bank of Pennsylvania v. Lincoln Nat. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson I, 477 U.S. at 249, 106 S.Ct. 2505.

III. DISCUSSION

In this Section 1983 and Section 1985 action, Plaintiffs have brought claims against Defendants Lowell and Kovarie individually and in their official capacities, and against BCCYS and Berks County. Plaintiffs have alleged that Defendants violated their right to due process in violation of the Fourteenth Amendment. They also allege deprivation of counsel in violation of the Sixth Amendment, and violation of civil rights as protected by the First, Sixth, and Fourteenth Amendments.*fn5

A. 42 U.S.C. § 1983

The court's analysis of the individual liability of each of the Defendants begins with a discussion of constitutional claims under 42 U.S.C. § 1983. Section 1983 reads, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to ...

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