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PATTERSON v. ARMSTRONG COUNTY

May 22, 2001

KELLY J. PATTERSON, INDIVIDUALLY, AND AS PARENT AND NATURAL GUARDIAN OF ABBY FERGUSON, DOUGLAS A. PATTERSON, AND KELLY'S KIDS CHILD CARE, INC., PLAINTIFFS,
V.
ARMSTRONG COUNTY CHILDREN AND YOUTH SERVICES, ARMSTRONG COUNTY, JO ELLEN BOWMAN, SOUTH BUFFALO TOWNSHIP AND SCOTT YOCKEY, OFFICER, DEFENDANTS.



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

  MEMORANDUM OPINION

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 motions with regard to plaintiffs' section 1983 procedural due process claims.

Background

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 summertime.

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 the car.

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. We 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 office.

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, at 16-17.

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.

On Monday morning, at Ms. Bowman's suggestion, Mr. Ferguson went to the district justice's office to file a second PFA petition. In that petition, he alleged that Mrs. Patterson and Abby had gotten in a fight the previous Friday and that Abby had sustained injuries and was afraid to go home to her mother. This too was an ex parte proceeding, at which Mrs. Patterson was neither notified nor given an opportunity to appear and contest the charges of child abuse. District Justice Gerheim granted the PFA petition for an indefinite period, again awarding emergency custody to Mr. Ferguson.

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.)

Plaintiffs' Claims

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. ¶ 62.

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.

Discussion

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.

Substantive Due Process

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 added).

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 proceedings.

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 CPSL.

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 custody.

Although Mrs. Patterson's attorney arrived at the school only about 30 minutes after he received the phone call, at around 4:00 p.m., by that time defendants' decision had been made. Their refusal to listen to Mrs. Patterson's statement, at that time, does not shock this Court's conscience. See Miller, 174 F.3d at 372-73. While another CYS caseworker or police officer might have been inclined to listen to her statement at that point, and while, perhaps, it might have been preferable for them to have done so, failure to do so does not qualify as an arbitrary governmental abuse of power.

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.

4. Minor Nature of Injuries. Everyone agrees that the CPSL requires "serious physical or mental injury" not explained by accident to sustain a finding of child abuse on the grounds of bodily injury. 23 Pa.C.S. § 6303. Because Abby's injuries were obviously not serious, it was unreasonable for defendants to conclude she had been abused.

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 ...


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