The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District
This action concerns the alleged deprivation of constitutional
rights arising out of the compelled removal of Jesse and Nancy
Adkins from their father's home for a period of four days while
medical examinations and tests on the children were conducted.
Plaintiffs are the Estate of Dr. R. Thomas Adkins, Jr. (who
passed away during the pendency of this litigation), and his two
children, Jesse and Nancy Adkins.*fn1 There are four
categories of Defendants: (1) Luzerne County Children & Youth Services ("CYS") and two of its employees
Carol Galli and Diane Radzwilka; (2) the Borough of Dallas and
its Chief of Police, Jack Fowler; (3) Luzerne County and its
Chief Detective, Stan Jezewski; and (4) Pennsylvania State Police
Trooper Frederick Tolerico. Plaintiffs claim that the removal and
medical examination of the children without a court order
violated substantive due process and their Fourth Amendment right
to be free from unreasonable searches and seizures. Recovery is
sought under 42 U.S.C. § 1983.
Each category of Defendants has separately moved for summary
judgment on all claims. Because Defendants established that they
had "reasonable and articulable evidence" justifying their
decision to remove Dr. Adkins' children from the family home and
directing the children to undergo medical examinations, summary
judgment on Plaintiffs' Fourteenth Amendment substantive due
process claim will be granted in Defendants' favor. Because the
evidence presented supports a conclusion that the Defendants
acted as a "reasonable guardian" by ordering Dr. Adkins' children
to undergo medical examinations in order to determine whether
they were poisoned or suffering from a serious illness, summary
judgment on Plaintiffs' Fourth Amendment claim will also be
granted in favor of Defendants.
Defendant CYS is an agency of Luzerne County and Defendants
Diane Radzwilka and Carol Galli were at all times relevant to the
events in this case employed by CYS as intake case workers. Defendant Frederick Tolerico is a Trooper with the
Pennsylvania State Police. Defendant Jack Fowler is the Chief of
Police for the Borough of Dallas. Defendant Stan Jezewski was the
Chief Detective in the Luzerne County District Attorney's Office
at the time relevant to the events in question.
Dr. Adkins was a licensed physician, and at the time in
question, was employed at both Mercy and Berwick Hospitals as an
emergency physician. (Adkins Dep. at 14-15) He is the father of
Plaintiffs Jessie and Nancy Adkins. At the time of the incident
in question, Jessie was thirteen (13) years old and Nancy was
four (4) years old. Jessie Adkins' mother was Mary Adkins, Dr.
Adkins' first wife, who died on June 17, 1990, at the age of
forty (40) of "presumed natural causes." In April of 1992 Dr.
Adkins remarried. His second wife, Delinda, was the mother of
Delinda Adkins died on January 17, 1999 at the age of thirty
(30), allegedly from "hemorrhagic interstitial pneumonitis."
However, the "Amended Postmortem Report" for Delinda Adkins,
which was completed by Dr. Hudock as part of an investigation
into the cause of her death, indicated the cause of death as
"undetermined," and the manner of death as "could not be
determined." Although the cause of Delinda Adkins' death was
listed as "undetermined," Dr. Hudock lacked any medical evidence
that even suggested that she died from anything other than the
flu. (Hudock Dep. at 16, 28.) Nonetheless, a criminal
investigation of her death was undertaken. Two months after Delinda Adkins died, on March 18, 1999, at
approximately 9:30 a.m., Dallas Borough Police Officer James
Drury received a call at the police station from a confidential
informant regarding the welfare of Dr. Adkins' children. The
confidential informant told Officer Drury that the four year-old
daughter, Nancy, had told the informant that Karen Sherman, Dr.
Adkins' girlfriend at the time,*fn2 stated to Nancy that she
and her sister would soon be going to heaven to be with their
mother. (See Victim/Witness Statement Form at 1, 4.) Officer
Drury immediately notified Chief Fowler of the information he
received from the confidential informant. Chief Fowler then
proceeded to contact Trooper Tolerico of the Pennsylvania State
Police and Detective Stan Jezewski of the Luzerne County District
Attorney's Office to inform them of the report he received from
the confidential informant. Defendants Tolerico and Jezewski had
participated in the investigation of Delinda's death.
At approximately noon on that same day, Chief Fowler, Trooper
Tolerico and Detective Jezewski personally interviewed the
confidential informant, who had a close and trusted relationship
with the Adkins' family. The law enforcement officers were
acquainted with the informant through their investigation into
Delinda's death. At that time, the confidential informant signed
a written affidavit stating:
Nancy said Karen told her that she and her sister
Jessie would be going to heaven soon to be with their
mommy. ? Nancy then started crying and said that she
knows she can only go to heaven if she dies, and she
doesn't want to die. . . . .
When Karen told Nancy that she was going to heaven
soon to be with mommy, she told her not to tell
anyone, because this is a secret.
(Victim/Witness Statement Form at 1, 4.) The confidential
informant also stated that Nancy "has been sick several times
since Delinda's death" and had run a fever of one-hundred and
four (104) degrees, a runny nose, and a terrible cough.
Furthermore, the confidential informant claimed that Dr. Adkins
had not taken Nancy to the doctor, despite repeated bouts of
sickness. (Id. at 2-3.) The confidential informant had access to
Dr. Adkins' children sufficient to establish the reliability of
her assertions as to the children's condition.
A telephone conference ensued involving former Luzerne County
District Attorney Peter Paul Olszewski, Jr.,*fn3 Michael
Dessoye, Chief of County Detectives for Luzerne County, and Stan
Jezewski. The District Attorney was aware of the investigation
into Delinda's death and the suspicions concerning the passing of
Dr. Adkins' first wife. Based on this conference a decision was
made by the District Attorney to take protective custody of Dr.
Adkins' children to assess their condition and to utilize CYS to
find an appropriate location for the children until the
proceedings could be concluded. Information relating to the
investigation of Delinda's death and information supplied by the
confidential informant led the District Attorney and the Defendants to conclude that the children were in imminent harm.
This information included: the suspicious circumstances
surrounding the untimely deaths of Mary and Delinda Adkins; the
alleged extramarital affair between Dr. Adkins and Karen Sherman;
the fact that she moved in with Dr. Adkins shortly after
Delinda's death; Dr. Adkins' prescription of numerous medications
for Delinda between August of 1998 and January of 1999, using
multiple pharmacies; the suspension of Dr. Adkins' medical
license by the state of Maryland; the flu-like symptoms
reportedly suffered by the children, similar to those suffered by
Delinda Adkins prior to her death; and Karen Sherman's statement
to Nancy Adkins that she would soon be joining her mother in
heaven. (Olszewski Dep. at 31-34, 37, 48-49, 67; Fowler Dep. at
32, 37-40; Jezewski Dep. at 20-21, 36, 54; Tolerico Dep. at 60,
140.) After the decision was made to take the children into
protective custody, District Attorney Olszewski relayed the
information to Jacquelyn Maddon, Social Services Coordinator for
CYS, and informed her that he would make arrangements for
Geisinger Medical Center to have the children examined medically.
(Maddon Dep. at 35.) Maddon then assigned Carol Galli and Diane
Radzwilka to the case. (Id. at 13-15.)
On Thursday, March 18, 1999, at approximately 5:00 p.m., Galli,
Radzwilka, Chief Fowler, Officer Drury, Trooper Tolerico, and
Jezewski arrived at Dr. Adkins' home for the purpose of taking
Dr. Adkins' children into protective custody. After consulting
with District Attorney Olszewski, Jezewski informed the parties
present that it was not necessary to obtain a search warrant in
order to take the children into protective custody. When Dr. Adkins opened the door to his home, he was advised of
the concerns regarding the health and welfare of his children and
he was further advised that it was the intention of the law
enforcement and CYS personnel to remove his children from his
home and place them in protective custody without his consent.
Dr. Adkins suggested that Defendants call the children's school
and their pediatrician, but was told that the children had to be
removed.*fn4 Diane Radzwilka and Carol Galli advised Dr.
Adkins that his children would be taken to Geisinger Medical
Center the following morning for an exam and then proceeded to
review options for the temporary placement of the children.
(Radzwilka Dep. at 36; Galli Dep. at 67-68.) After further
discussion, Dr. Adkins agreed that his children could be placed
with Samantha Spencer, a friend of Delinda Adkins, who helped out
babysitting three days per week and lived one-hundred and fifty
(150) yards from Dr. Adkins' home. Dr. Adkins also agreed to
allow the caseworkers to access the children's medical and school
records and signed a release to that effect. However, Dr. Adkins
was not presented with a written release authorizing medical
examinations of his children.
On the morning of March 19, 1999, Dr. Adkins obtained legal
representation, based on his belief that a "shelter care" hearing was going to take place
later that day.*fn5 (Adkins Dep. at 90-91, 258-59, 324.) Dr.
Adkins' attorney negotiated an agreement with CYS, that was
approved by the District Attorney, whereby his children would
remain with Samantha Spencer until Monday, March 22, 1999, while
they awaited the results of the medical examinations. Dr. Adkins
was also permitted to visit his children at Ms. Spencer's home
over the weekend. This negotiation allowed the parties to avoid a
shelter care hearing. (CYS's Sealed Exhibit "F" at 26.)
On March 19, 1999, the children were taken to Geisinger Medical
Center and examined by Dr. Cordes. He conducted a physical
examination of both children and ordered urine and blood tests.
(Cordes' Answers to Interrogatories at 30-32.) Dr. Cordes also
ordered a precious metals scan to rule out exposure to any
potential toxins. (Id. at 36-37.) The results of Dr. Cordes'
physical exam and medical tests indicated that both of ...