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.
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. . . .
The Due Process Clause of the Fourteenth Amendment
prohibits the government from interfering in familial
relationships unless the government adheres to the
requirements of procedural
and substantive due process. . . . In determining
whether the Crofts' constitutionally protected
interests were violated, we must balance the
fundamental liberty interests of the family unit with
the compelling interests of the state in protecting
children from abuse. Whatever disruption or
disintegration of family life the Croft's may have
suffered as a result of the County's child abuse
investigation does not, in and of itself, constitute a
constitutional deprivation . . . .
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).