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ADKINS v. LUZERNE COUNTY CHILDREN

September 2, 2005.

JESSIE ADKINS now emancipated, NANCY ADKINS, by and through her Guardian, Karen Adkins and Karen Adkins, as the Administratrix of the ESTATE OF R. THOMAS ADKINS JR. a/k/a THOMAS R. ADKINS, JR. Plaintiffs,
v.
LUZERNE COUNTY CHILDREN & YOUTH SERVICES OF LUZERNE COUNTY, CAROL GALLI, DIANE RADZWILKA, COUNTY OF LUZERNE, FRED TOLERICO, BOROUGH OF DALLAS, JACK FOWLER, STAN JEZEWSKI, Defendants.



The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District

MEMORANDUM

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.

  I. BACKGROUND

  A. Factual Background

  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 Nancy Adkins.

  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 ...


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