The opinion of the court was delivered by: Lee, District Judge.
Before the Court are: (i) South Buffalo Township ("Township") and
Officer Scott Yockey's Motion for Summary Judgment (Document No. 35); and
(ii) Motion for Summary Judgment (Document No. 38) filed on behalf of
Armstrong County ("County"), Armstrong County Children and Youth Services
("CYS"), and Jo Ellen Bowman. After careful consideration of these
motions, the memoranda of law in support and in opposition thereto, the
supporting materials offered by the parties, and the entire record in
this case, the Court will grant summary judgment in favor of all
defendants on plaintiffs' substantive due process claims brought pursuant
to 42 U.S.C. § 1983 and their pendent state claims, but will deny the
with regard to plaintiffs' section 1983 procedural due process claims.
The historical facts underlying this lawsuit are not in dispute, for
the most part, although the competing inferences the parties spin from
those facts are wildly divergent. Putting aside the contradictory spins
and inferences, for now, the mostly undisputed material facts material
are as follows. During the first week of November 1998, plaintiff Kelly
J. Patterson and her daughter, Abby Ferguson, approaching 15 years of
age, were having an ongoing disagreement about, among other things,
whether Abby could go and live with her father, Jeffrey Ferguson. Mrs.
Patterson had primary custody, and pursuant to family court order, Mr.
Ferguson had alternating weekends, and substantial shared custody in the
On the morning of November 6, 1998, a Friday, the escalating week-long
squabble culminated in a physical altercation in the driveway of their
home. After the altercation, Mrs. Patterson drove Abby to Freeport Area
High School. Two of Abby's friends noticed that she was very upset,
crying, and had some minor scrapes and bruises on her wrists, arms, knees
and a small bump on her head. Abby told them she was upset because her
mother and she had a fight.
Her friends persuaded Abby to tell the guidance counselor what had
happened. Doug Stanko, the counselor, spoke with Abby who told him about
the fight. Mr. Stanko asked Abby to write out a statement explaining what
had happened. Abby handwrote the seven-page statement, the highlights of
which are as follows.
Abby described a series of escalating arguments she had with her mother
over a variety of things, but mostly about her wanting to go and live
with her father. Mrs. Patterson thought she was manipulating her
parents. On one occasion, "she said she would punch me in the face and
drag me to the car" if Abby wouldn't ride to school with her
voluntarily. Abby Ferguson deposition, Deposition Exhibit 1, at 4. The
arguments continued for about a week. On Friday, November 6, 1998, Abby
told her mother she was going to go to her father's residence after
school, and tempers flared.
The argument escalated, mother and daughter shouting at each other,
including Abby Ferguson screaming, "Screw you." Mrs. Patterson insisted
Abby would not ride the bus to school, and she was going to drive her
instead. Arguing throughout the morning, eventually they headed toward
By that time I'd gotten to the car & was on the
steppey thing, & she came up behind me &
pulled me out by my hair & faced my head down. She
told me never to swear at her again. I told her to
stop & let go of me & she said not `til I said
I wouldn't. We got on the ground & she clawed me
& we fought until I got on top & I said, "You
don't hit me." She got on top again, & she got my
hooded sweatshirt over my face & was pulling it. I
told her I couldn't breathe, & she said good. I
got out of her grip, and I got at last on all fours.
She clawed at my bracelets & my arm, & pulled
my left arm back behind my back, and when I told her
she was hurting me, she said she'd break my fingers if
she had to! She put my forehead into the gravel,
& I was stuck, there was nothing I could do. She
had called my step-dad out, & he was standing
there, just watching. I got on all four's again,
& she got me down, pulled my arm back, sat on top
of me, & all I could do was say that I wouldn't
swear. She sat there for a few sec., then let me up.
got into the car, and after stopping at Freeport, she
took me to school. I called my dad, and he said he'd
come get me. Then on my way to H.R., my friends Jenny
& Deanna saw I had been crying and when I told
them what happened, they took me to the guidance
Abby Ferguson deposition, Deposition Exhibit 1, 6-7.
Mr. Stanko reported the incident to his immediate supervisor, Assistant
Principal Max Krugle. After seeing Abby and reading her statement, he
requested Abby be examined by the school nurse. Abby told Mr. Krugle that
she did not want to go home that night, and that she was afraid of her
mother. Nurse Mary Barbara Lagiovane examined Abby, and noted the minor
scratches, scrapes and bruises on her knees, hands, wrists and an
abrasion on her head. Abby told Nurse Lagiovane that she was afraid to go
home. Nurse Lagiovane, and Messrs. Krugle and Stanko met with the
principal, Mr. Robert Schlciden, to determine the next step. Principal
Schleiden spoke with Abby and confirmed the facts in her written
statement. Abby indicated to the principal she was adamant about not
going home to her mother. The four school officials unanimously decided
that this incident had to be reported to CYS.*fn1
Kelly Patterson, who owns and runs Kelly's Kids Childcare, Inc., a
childcare center, concedes it was appropriate for the school officials to
notify CYS pursuant to the mandatory reporting provisions of the Child
Protective Services Law ("CPSL"), 23 Pa.C.S. §§ 6301-43384. Defendant
Jo Ellen Bowman was the caseworker assigned by CYS to investigate the
matter. She went to Freeport Area High School, read Abby's statement,
interviewed her and confirmed what she had written. Ms. Bowman reviewed
the nurse's report and observed the visible injuries to Abby. Abby
expressed some concern about her safety and had asked Ms. Bowman not to
notify her mother that CYS was involved. Bowman deposition, at 20,
28-29. Abby told Ms. Bowman "that her mother would be very angry knowing
that we were involved," and "she felt that the situation that had
happened that morning was going to escalate and did not feel that the
situation between herself and her mother had been rectified from the
altercation that they had in the morning." Bowman deposition, 28-29.
Ms. Bowman had attempted to contact Mrs. Patterson by telephone at her
daycare center, but was told she was not available. Ms. Bowman then
contacted several police stations in boroughs which arguably had
jurisdiction over some or all of the events, including South Buffalo
Township Police Department, which had jurisdiction at the
Patterson-Ferguson residence. Officer Yockey was the police officer from
Township who went to the school to investigate.
According to Ms. Bowman, she tried to speak with Mrs. Patterson, who
was making a phone call to her lawyer, and Mrs. Patterson could not say
how long it would take for her lawyer to get to school. It was late
afternoon, the high school was in a football playoff game, and everyone
in the school, including the school officials, wanted to go to the game.
Ms. Bowman asked Mrs. Patterson if she wanted to go to he police station
to wait for her attorney, and Mrs. Patterson said no. Bowman deposition,
Ms. Bowman then discussed the matter with Officer Yockey and the school
officials, and everyone agreed Abby Ferguson should not return home that
night because they were not able to ensure her safety if she did. Bowman
deposition, at 12-13, 21. Officer Yockey initiated a call to District
Attorney Scott Andreassi, the district attorney for Armstrong County, who
agreed Abby should be taken into protective custody, and advised Officer
Yockey and Ms. Bowman to initiate that. He also advised Officer Yockey to
file criminal charges against Mrs. Patterson based upon what the
circumstances described to him, and Officer Yockey later filed criminal
charges for simple assault, harassment, and disorderly conduct.
According to both Ms. Bowman and Officer Yockey, Yockey assumed custody
of Abby Ferguson under Pennsylvania's Juvenile Act, 42 Pa.C.S. §§
6301-6365, which was the normal procedure CYS and officers of the
Township followed on weekends and after hours. Bowman deposition at
30-31. Immediately after assuming custody, perhaps simultaneously,
Officer Yockey turned custody over to CYS/ Ms. Bowman. In the meantime,
Mrs. Patterson's attorney arrived, about 30 minutes after she placed the
phone call to him. After speaking with her attorney briefly, he and Mrs.
Patterson told Ms. Bowman that she would like to give a statement.
However, Bowman told her it was too late, that they had already taken
Abby into custody, and she declined to take Mrs. Patterson's statement.
Officer Yockey telephoned District Justice Michael L. Gerheim and
advised him that. Ms. Bowman and Abby Ferguson were on their way down to
file a petition under the Protection from Abuse Act ("PFA Act"), 23
Pa.C.S.A. § § 6101-6118. Ms. Bowman drove to the district
justice's office, and assisted Abby in completing the petition. All
parties agree that a nonemancipated minor, such as Abby Ferguson, is not
authorized by the PFA Act to initiate a petition, 23 Pa.C.S. §
6106(a), and this petition and procedure were therefore flawed.
Nevertheless, the district justice granted Abby Ferguson's petition, ex
parte, and awarded custody temporarily to her father, Jeffrey Ferguson,
who by then had arrived at District Justice Gerheim's office. Mrs.
Patterson had not been informed about this PFA Act proceeding, nor was
she notified of the order entered, although she found out on Sunday that
Abby was with her father.
Officer Yockey filed criminal charges for simple assault, harassment
and disorderly conduct against Mrs. Patterson, with the advice of the
District Attorney. At the preliminary hearing on November 23, 1998, the
District Attorney's office withdrew the charges. District Attorney
Andreassi testified he believed there was probable cause for the
charges, but believed this was primarily a domestic/custody matter better
off handled through civil proceedings.
On November 18th, Mr. Ferguson withdrew his PFA petition. On November
23rd, CYS received a medical report from the Grove City Hospital
indicating Abby had not suffered any serious injury, at which point CYS
declared the charges of suspected child abuse to be "unfounded" and
closed the case. At that point, Abby Ferguson was free to return home.
however, she continued to stay with her father until Christmas day,
December 25, 1998, when she returned home to her mother where she resides
today. Thus, from November 6, 1998, until November 23, 1998. a period of
17 days, Mrs. Patterson was deprived of custody, or indeed any
relationship or contact with her daughter Abby, and vice versa. During
that same period of time, Mrs. Patterson believed herself prohibited by
Pennsylvania regulation from working at or entering the premises of her
several child care centers, while child abuse charges were pending, and
so could not go to work or manage the centers in person. (Defendants
appear to share, or at least do not challenge, that belief.)
Based upon the foregoing events, plaintiffs Kelly Patterson,
individually and as parent and natural guardian of Abby Ferguson, Douglas
Patterson, Kelly's husband, and Kelly's Kids Childcare, Inc., filed a
lawsuit against CYS, County and Jo Ellen Bowman. Plaintiffs allege these
defendants took Abby into protective custody without reasonable grounds
to believe she was an abused child or that she was in imminent risk of
serious bodily or physical injury, as they claim is required under the
CPSL, and that defendants failed to comply with the procedural
requirements of the CPSL by failing to schedule timely hearings and
failing to notify Kelly Patterson of the charges against her and to
provide her with a meaningful opportunity to respond to said charges.
Complaint, ¶ 57. Kelly Patterson alleges she has suffered
psychological damage, destruction of the family unit, loss of income, loss
of professional reputation in the community, attorneys' fees, costs and
ether expenses, and disruption of the relationship between her and her
ex-husband, Jeffrey Ferguson, regarding custody of Abby Ferguson.
Complaint, ¶ 60.
Abby Ferguson alleges she has suffered psychological damage,
destruction of the family unit, attorneys' fees, costs and expenses, and
disruption of her familial relationships, particularly with her parents.
Complaint. ¶ 61. Kelly's Kids Childcare, Inc., alleges it has
suffered loss of income, loss of professional reputation in the community
as a daycare center, loss of employees, payment of overtime to employees
due to Kelly Patterson's inability to be on the premises, loss of present
and future clients, and other consequential damages. Complaint. ¶
At Count One, plaintiffs allege violation of their civil rights under
42 U.S.C. § 1983, which they list as (a) their liberty
and privacy interests in maintaining custody of the minor child without
undue inference, including removal from the home without notice and a
hearing, (b) the right of familial associations, (c) the right to freedom
of intimate association, (d) the right to substantive and procedural due
process under the Fourteenth Amendment, (e) the right to be free from
excessive force, (f) the right to be free from malicious prosecution, (g)
the right to be secure in one s person and property, and (h) the right to
freedom of enterprise. Complaint, ¶ 65. Plaintiffs further allege
that defendant Bowman acted pursuant to a well-established custom and/or
policy of the municipal defendants, the County and CYS, by, inter alia,
wrongfully utilizing the PFA Act to circumvent rights afforded under the
Pennsylvania CPSL, and that the defendants' conduct "shocks the
conscience." Complaint, ¶¶ 66-67, 71.
Plaintiffs' remaining counts are "pendent state claims" under this
Court's supplemental jurisdiction. Complaint, ¶ 75. Count Two alleges
on behalf of the individual plaintiffs against Jo Ellen Bowman, the
intentional infliction of emotional distress. Complaint, ¶¶ 76-81. At
Count Three, all of the plaintiffs raise a claim of negligence against
Ms. Bowman. Complaint, ¶¶ 82-87. In Count Four, all of the plaintiffs
raise a claim of civil conspiracy against all of the Armstrong County
defendants. Complaint, ¶¶ 88-91. Kelly Patterson brings a claim
against Ms. Bowman for malicious prosecution at Count Five. Complaint,
¶¶ 92-97. Finally, Douglas Patterson claims loss of consortium against
Jo Ellen Bowman at Count Six. Complaint, ¶¶ 18-99.
The Court granted leave to amend to join additional defendants, and
plaintiffs filed an amended complaint joining Township and Officer
Yockey. At Count One, all plaintiffs claim violation of civil rights
under 42 U.S.C. § 1983 against Township and Officer Yockey. The
amended complaint incorporated by reference the allegations of the
initial complaint, and claimed the violations of civil rights set forth
against the Armstrong County defendants, but with additional deprivations
alleged, of (i) the right to counsel, (j) the right against
self-incrimination, and (k) the right, to freedom of expression. Amended
Complaint, ¶ 6. The amended complaint further makes allegations of
municipal liability in that Yockey was acting at all relevant times in
accordance with well-established custom and/or policies of Township, in a
variety of ways including utilizing the Juvenile Act and the PFA Act to
circumvent rights afforded by the CPSL. Amended Complaint, ¶ 8.
The remaining pendent state claims against the additional defendants
are as follows: at Count One, on behalf of the individual plaintiffs
against Yockey, intentional infliction of emotional distress (Amended
Complaint, ¶¶ 17-22); at Count. Three, all plaintiffs versus Yockey.
for negligence (Amended Complaint, ¶¶ 23-28); at Count Four, all
plaintiffs versus all defendants, for civil conspiracy (Amended
Complaint, ¶¶ 29-32); at Count Five, Kelly Patterson versus Yockey,
for malicious prosecution; and Count Six, Douglas Patterson versus
Yockey, for loss of consortium.
The primary battle waged in this summary judgment war is over
plaintiffs' claims under the Fourteenth Amendment and 42 U.S.C. § 1983
for substantive and, to a much lesser extent, procedural, due process. As
set forth above, plaintiffs allege a variety of "rights" deprived them by
the actions of the defendants in November 1998. However, with the
exception of the right to be free from malicious prosecution, all of the
other various rights identified
are either components of the primary right to family integrity, which
encompasses the due process claims, or have been abandoned by the
plaintiffs because there is no evidence to support the theory. In this
latter category are the right to be free from excessive force (there is
no indication force was used against any of the plaintiffs), the right
against self-incrimination, the right to freedom of expression, and the
right to counsel. Accordingly, this Court's analysis of plaintiffs' civil
rights claims under section 1983 is confined to their right to familial
integrity as protected by substantive and procedural due process under
the Fourteenth Amendment, and the right to be free from malicious
While there is overlap and interplay between the two types of due
process claims in this case, nevertheless these are separate and distinct
constitutional principles which require separate and distinct analyses.
The parties' respective memoranda overlook the distinction and are
devoted almost exclusively to plaintiffs' substantive due process
claims, with only superficial treatment. of the procedural due process
claims and law. Nevertheless, the important facts relevant to the
procedural due process claim appear in the record, and enable this Court
to make a reasoned decision on this claim.
All parties agree that Croft v. Westmoreland County CYS, 103 F.3d 1123
(3d Cir. 1997), controls the disposition of the substantive due process
claims in this case, although they vigorously contest its application. In
Croft, the Westmoreland County CYS had received a multiple hearsay report
that a young child, still in diapers, was being sexually abused by the
father. A CYS caseworker, accompanied by a state trooper, went to the
plaintiffs' home that evening, interviewed the parents, and based on
rampant speculation about perceived inconsistencies in the parents'
response to the allegation of sexual abuse, the CYS caseworker gave the
father an ultimatum: "Unless he left his home and separated himself from
his daughter until the investigation was complete, [the CYS caseworker]
would take [the (laughter] physically from the home that night and place
her in foster care." 108 F.3d at 1124. At the conclusion of this
interview, the CYS caseworker was "uncertain whether any sexual abuse had
occurred," but since she could not rule it out, and the parents had not
proved beyond any certainty there was no sexual abuse, she determined she
needed to remove the child or the source of the alleged abuse from the
home. The parents were compelled to acquiesce to the ultimatum.
The district court entered summary judgment against the parents on
their complaint raising impermissible interference with their Fourteenth
Amendment liberty interest in the continued companionship of their
daughter. The Court of Appeals for the Third Circuit reversed, stating:
We recognize the constitutionally protected liberty interests that
parents have in the custody, care and management of their children. . . .
We also recognize that this interest is not absolute. . . . Indeed, this
liberty interest in familial integrity is limited by the compelling
governmental interests in the protection of children — particularly
where the children need to be protected from their own parents. . . . The
right to familial integrity, in other words, does not include a right to
remain free from child abuse investigations. . . .
Croft, 103 F.3d at 1125-26 (citations and fool note omitted; emphasis
The Court noted that there are cases in which a child protective agency
is justified in removing either a child or the parent from the home,
"even where later investigation proves no abuse occurred." Id. at 1126.
However, Croft was not one of those cases, and the "state has no interest
in protecting children from their parents unless it has some reasonable
and articulable evidence giving rise to a reasonable suspicion that a
child has been abused or is in imminent danger of abuse." Id. (emphasis
added). The Court focused on "whether the information available to the
defendants at the time would have created an objectively reasonable
suspicion of abuse justifying the degree of inference with the parents'
rights as the child's parents." Id. In the absence of such reasonable
grounds, the governmental intrusions of this nature "are arbitrary abuses
of power." Id. (emphasis added).
The Court held that the CYS caseworker, acting on an anonymous tip with
multiple layers of hearsay, without any corroborating evidence, and
without any evidence that convinced her one way or another that there was
any sexual abuse involved, had insufficient justification for such a
drastic infringement on parental and children's rights (familial
integrity), and so was an arbitrary abuse of government power. Id. at
1127. Under all of the circumstances, the Court held the CYS caseworker
"lacked objectively reasonable grounds to believe the child has been
sexually abused or was in imminent danger of sexual abuse." Id.
Accordingly, the district court's grant of summary judgment in
defendant's favor was reversed and the case was remanded. Substantive due
process was the only issue before the court, but it noted the policy of
removing the suspected parent from the family home while the child abuse
investigations were pending, absent any procedural safeguards, raised
procedural due process concerns which it had no occasion to address or
resolve. Id. at 1125, n. 3.
Croft was explained and followed in Miller v. City of Philadelphia,
174 F.3d 368 (3d Cir. 1999). Miller involved claims for the deprivation
of substantive and procedural due process by a mother and her three
children, inter alia, against the City of Philadelphia and its Department
of Human Services ("DHS"), for removing the children from the family home
without probable cause and, in fact, based upon false information
provided to the emergency judge who ordered the children removed
temporarily. After the DHS investigation was pursued sporadically, it
eventually was closed by the agency without further judicial
Citing Croft and Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982), Miller recognized the fundamental liberty
interests by parents in the care, custody and management of their
children, an interest which must be balanced against the State's interest
in protecting children suspected of being abused. 174 F.3d at 373, 374.
The Court held that where abusive government action by a member of the
executive branch is alleged, "only the most egregious official conduct
can be said to be arbitrary in the constitutional sense." Id. at 375,
quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998). Under this standard, executive action will
not expose the official to liability unless it is "so ill-conceived or
malicious that it `shocks the conscience.'" Id. The Court emphasized that
Croft was simply an application of the traditional substantive due
process "shocks the conscience" standard. Miller, 174 F.3d at 376.
Importantly, the Court also noted that deliberate indifference that
shocks the conscience in one context may not seem or be so egregious in
another context, making the nature and particulars of each case
critical. Id. at 375. The Court stated:
We recognize that a social worker acting to separate
parent and child does not usually act in the
hyperpressurized environment of a prison riot or a
highspeed chase. However, he or she rarely will have
the luxury of proceeding in a deliberate fashion, as
prison medical officials can. As a result, in order
for liability to attach, a social worker need not have
acted with the "purpose to cause harm," but the
standard of culpability for substantive due process
purposes must exceed both negligence and deliberate
indifference, and reach a level of gross negligence or
arbitrainess that indeed "shocks the conscience."
Id. at 375-76 (emphasis added).
Although the Court discussed and identified facts which indicated
defendants investigation was shoddy and less professional than it should
have been,*fn2 the Court concluded that, "Even if all of the facts
alleged above [see note 2] were true, [the DHS investigator] did not act
in a way that shocks the conscience." 174 F.3d at. 377. See also Robert
S. v. City of Philadeiphia, 2000 WL 341565, *4 (E.D.Pa. 2000) ("Lewis and
Miller now require applying the `shock the conscience' standard to all
substantive due process claims under Section 1983. . . . It is a flexible
standard depending on the facts of each case." Citations omitted); Dowan
v. City of Philadelphia, 2000 WL 1224906, *2 (E.D.Pa. 2000) ("The Third
Circuit has made it clear that when it comes to a social worker's
interference with the parent-child relationship, only conduct that is so
arbitrary as to shock the conscience may be considered violative of a
parent's substantive due process rights. Miller . . . .")
This case does not rise to the level of questionable, but not
conscience shocking, conduct displayed in Miller, and it certainly does
not rise to the level of arbitrariness seen in Croft, which did shock the
conscience. Plaintiffs do not dispute that Kelly Patterson and her
daughter Abby were involved in a physical altercation, a wrestling
match, on the morning of November 6, 1998, and that Kelly Patterson
pulled Abby by her hair from the car, wrestled her to the ground and
pushed her face in the gravel driveway, causing minor
bruises, cuts and scrapes, and that when she got to school, Abby was red
faced, crying, and visibly upset. Importantly, plaintiffs also agree the
school officials were, in Kelly Patterson's own words, "absolutely"
required to report the incident to the appropriate CYS agency under the
Similarly, plaintiffs do not dispute that Abby Ferguson unequivocally
told several school officials, Officer Yockey and Ms. Bowman that she was
afraid and did not want to go home, and that she knew her mother would be
angry with her because CYS was now involved. All of the school officials
and employees, as well as Officer Yockey and Ms. Bowman, were concerned
on the afternoon of November 6, 1998, for Abby Ferguson's safety and well
being, and determined that they were not able to ensure her safety if she
returned to the family residence.
Under all of the circumstances, and comparing them with the facts and
circumstances of Croft and Miller, defendants clearly, and as a matter of
law, had reasonable and articulable evidence before them giving rise to a
reasonable suspicion that Abby Ferguson had been abused or was in
imminent danger of abuse. Their conduct did not approach the level of
arbitrary government action of the case worker in Croft, and a reasonable
jury could not conclude, on the undisputed historical facts, that their
conduct "shocks the conscience."
Plaintiffs argue that it was not objectively reasonable for defendants
to believe, on the afternoon of November 6, 1998, that Abby Ferguson had
been abused or was in danger of being abused, for several reasons.
1. Retaliation. Plaintiffs vigorously contend that defendants'
actions, particularly Ms. Bowman's, were in retaliation for Mrs.
Patterson having the temerity to refuse to give them a statement until
after she had spoken with her attorney. They claim this was an
interference with Mrs. Patterson's right to counsel. It is not apparent
how a constitutional "right to counsel" arises in this civil proceeding,
and plaintiffs have not attempted to show how it might. Even if it is
true that Bowman was peeved about Mrs. Patterson's request. to speak with
an attorney, however, such "retaliation" would not "shock the
conscience." In Miller, the Court of Appeals rejected the argument that
the due process clause required the government to allow the parent or her
attorney to take part in an emergency hearing at the hospital, even
though both were present. 174 F.3d at 372-73. In any event, as a factual
matter the record does not bear out plaintiffs' contention.
This situation had been percolating all day, from the morning until
around 2:45 p.m. when Kelly Patterson came to school to get Abby, and
became aware of CYS and police involvement. Ms. Bowman did not want to go
in person to Mrs. Patterson's child care center, and attempted to contact
Mrs. Patterson earlier by telephone, but she inexplicably did not receive
the messages. Mrs. Patterson does not dispute that when she was
attempting to contact her attorney, she told Ms. Bowman that she had no
idea when her attorney would arrive, and that it could be 30 minutes or
"it could take six hours." (She says she did not have an "attitude" and
defendants claim she did, but that is not material.) At that point, Ms.
Bowman and Officer Yockey made the decision to take Abby into protective
2. No Opportunity to Explain. Closely related to the retaliation
argument, plaintiffs argue their substantive due process rights were
violated by defendants' refusal to listen to Mrs. Patterson's explanation
for the day's events before they took Abby Ferguson into protective
custody. As noted, there was no constitutional requirement that
defendants listen to Mrs. Patterson's explanation at that time. Miller,
174 F.3d at 372-73. Moreover, Kelly Patterson's explanation,
painstakingly detailed in her deposition testimony, is not significantly
different from Abby's seven-page handwritten statement or from her oral
statements to school officials, Ms. Bowman and Officer Yockey. Instead,
Kelly Patterson's version of the events of November 6th, which presumably
would have been the version she told officials on November 6th had she
been permitted to make a statement, attempts to put the wrestling match
in context. That context, the escalating disagreement that had been
brewing for over a week about Abby wanting to live with her father, would
show Mrs. Patterson in a more sympathetic light, not as a mean or abusive
parent but as a frustrated mother who had reached her wits end with a
rebellious teenager, ending up in a hair-pulling, wrestling match in the
driveway of their home when all else had failed.
But this context was evident from Abby's own handwritten statement, and
does not contradict the historical facts known to defendants at that
time, nor would it have changed defendants' concern that they could not
ensure Abby's safety if she were permitted to return to the home, while
emotions continued to run high.
3. The Fear Factor. Plaintiffs also contend that Abby Ferguson told
defendants at the school that she was not a victim of child abuse, and
that, even though she said she was afraid, she never told them that she
was afraid that her mother would hit her, and that defendants should have
conducted additional investigation or probed into the psychological
foundation of Abby's fear. This argument is somewhat misleading, and
rests on a distinction without a difference.
Abby told everyone at school that day she was afraid to go home. She
told everyone she was in a physical fight with her mother, and they saw
her bruises, scrapes and cuts. Abby told school officials and defendants
she knew her mother would be angry, and particularly that she would be
angry that CYS was involved. She also said she was afraid that the
situation would escalate if she were to go home with her mother. School
officials and defendants were not required to probe more deeply into the
psychological basis of Abby Ferguson's fear. Whether she was afraid that
her mother would hit her (and there is no evidence of that) or afraid to
go home because the situation was out of control and her mother would be
angry (and there was plenty of evidence of that), the fact remains that
there was reasonable suspicion of abuse or imminent danger of abuse, and
defendants could not ensure Abby's safety if they were to allow her to
return home with Mrs. Patterson.
Defendants did not, however, determine on November 6th that Abby had
been abused within the meaning of the CPSL, rather, they determined there
was a reasonable suspicion Abby had been abused or was in imminent danger
of being abused if she were to be allowed to return home. Whether or not
she was in fact abused within the meaning of the CPSL (i.e., had
sustained serious physical or mental injury) was a determination on the
merits for another day. As it turned out, after CYS received Abby's
medical reports from Grove City Hospital, it confirmed her injuries were
not serious, and on November 23, 1998, declared the investigation
"unfounded."*fn3 On November 6, 1998, defendants were not required to
know or guess at the full extent of Abby Ferguson's injuries. All that
the constitution required of them was that they have reasonable and
articulable evidence giving rise to reasonable suspicion that she had
been abused or was in imminent danger of abuse. See Brown v. Town of East
Haddam, 56 F. Supp.2d 212 (D.Conn. 1999), aff'd 213 F.3d 625, 2000 WL
536156 (20001) (School officials had reasonable suspicion to suspect
child abuse or danger of child abuse when daughter arrived at school with
a bruise under her left eve after mother had given her a backhand during
an argument on the ride into school, and where the daughter told
officials that mother had been abusive for some time and that she no
longer wanted to live in the marital home).
Accordingly, the Court finds that the individual defendants are
entitled to summary judgment on plaintiffs' claims of a deprivation of
their rights to substantive due process under the ...