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W.P. v. Westmoreland County

December 14, 2005


Opinion and Order

Plaintiff W.P. commenced this action on behalf of himself and his children, E.P. and W.T."H."P. (collectively referred to as "Plaintiff"), against several Defendants involved in events occurring after Plaintiff requested that the Westmoreland County Children's Bureau's take custody of his children to protect them. In his Amended Complaint, Plaintiff alleges several civil rights violations as well as state law tort claims. Presently before the Court are Defendants' motions to dismiss and Plaintiff's responses thereto.

As discussed below, we will grant in part and deny in part the motions to dismiss.

I. Background

Plaintiff has sued Westmoreland County, Pennsylvania; the Westmoreland County Commissioners; the Westmoreland County Children's Bureau ("WCCB"); the Director of the WCCB, Gerald Sopko; the Assistant Director of the WCCB, Marilyn McSparrin; a Case Worker Supervisor of the WCCB, Kandee Lojas; a Case Worker of the WCCB, Ryan Abel; and a supervisor of the WCCB's Foster Parents, Karen Kempert (collectively "the WCCB Defendants"). In addition, Plaintiff has sued the foster parents, M.D. & N.D., where the children were placed by the WCCB. Plaintiff has also filed suit against M. Jerome Fialkov, M.D., who evaluated Plaintiff and his children and issued a report pursuant to the direction of the WCCB and Order of Court. Finally, Plaintiff sues unnamed Defendants the WCCB Policy Makers; John Doe A and John Doe B; ABC Corporation; DEF, An Unincorporated Association; and GHI, a Partnership. . A. Plaintiff's Allegations

On July 9, 2002, Plaintiff, W.P., the father of E.P. and W.T."H."P., his minor children, telephoned the Westmoreland County Children's Bureau ("WCCB") requesting assistance as he did not believe he could ensure his children's safety from an individual who had been threatening him. (Am. Compl. ¶ 29.) The WCCB took custody of the children on July 9, 2002, placing them with a foster family, and scheduling a shelter care hearing for July 11, 2002. (Am. Compl. ¶¶ 29, 30, & 31.) During the relevant time period the children were 8 and 11 years of age. (Am. Compl. ¶ 1.) Events Prior to the July 9, 2002 Telephone Call Prior to the July 9, 2002 telephone call to the WCCB, Plaintiff and his children had been temporarily living in a hotel in Hempfield Township, Westmoreland County, Pennsylvania. (Am. Compl. ¶ 20.) The family was waiting for repairs to be completed on a leased house in Ligonier Township, Westmoreland County, Pennsylvania. (Am. Compl. ¶ 20.) The family had moved out of their Hempfield Township home where Plaintiff's wife, and mother of the children, had committed suicide on October 30, 2001, following a lengthy illness. (Am. Compl. ¶ 17.)

While Plaintiff's wife was ill, he had employed an individual to help out with household repairs. (Am. Compl. ¶ 21.) Plaintiff occasionally gave this person financial assistance, and after his wife died the individual began harassing Plaintiff for additional financial assistance. (Am. Compl. ¶ 22-23.) Plaintiff eventually began to believe that this individual was a threat to the safety of his children. (Am. Compl. ¶ 25.)

Plaintiff was unable to sleep in the two days before his call to the WCCB. (Am. Compl. ¶ 28.) During these two days he believed he saw the individual in a vehicle near where the children took a bus for day camp and he also received a telephone call threatening the children's safety. (Am. Compl. ¶ 28.) In addition, Plaintiff was being treated by a psychiatrist and psychologist regarding his wife's death, and was taking Paxil, prescribed by his primary care physician. (Am. Compl. ¶ 26.) It was learned later that Plaintiff had an adverse reaction to Paxil that resulted in sleeplessness, increasing worry, increasing agitation, and induced a manic episode. (Am. Compl. ¶ 27.) These symptoms rapidly diminished after Plaintiff stopped taking Paxil. (Am. Compl. ¶ 27.) The Hearings and Evaluations Plaintiff appeared at the July 11, 2002 shelter hearing representing himself and testifying that he believed he could keep his children safe. (Am. Compl. ¶ 31.) Following a full hearing the Court determined that the children should remain in the custody of the WCCB, with Plaintiff having one-hour per week visits at the WCCB office. (Am. Compl. ¶ 31-32.) The children thus remained with the foster family until physical custody over the children was returned to the father on October 10, 2002. (Am. Compl. ¶¶ 30, 83.)

Beginning August 20, 2002, Plaintiff's visits with his children increased to two evenings a week, as well as Saturdays and Sundays. (Am. Compl. ¶ 36.) Transportation for the visits, as well as for transporting the children to school in Ligonier Township where Plaintiff then resided, was conducted by Spectrum Family Services. (Am. Compl. ¶¶ 34-36.)

At the July 11, 2002 shelter hearing Plaintiff agreed to undergo a psychiatric examination and the Court ordered that the examination take place as soon as possible. The examination was conducted by Defendant M. Jerome Fialkov, M.D., sometime in August, 2002. A dependency hearing was scheduled for August 19, 2002, which would have been Plaintiff's first opportunity to present evidence that he was capable of caring for his children. On August 16, 2002, Dr. Fialkov provided his recommendation that the children should be evaluated. Based on Dr. Fialkov's recommendation, the August 19, 2002 dependency hearing was necessarily continued by consent of all parties until October 3, 2002 at 10:30 a.m. (Order of Court, August 19, 2002, attached as Pl.'s Ex. 1 to Plaintiffs' Response in Opposition to M. Jerome Fialkov's Motion to Dismiss (hereinafter "Plaintiffs' Response to Fialkov").)

In the August 19, 2002 Order of Court, Dr. Fialkov was ordered to conduct evaluations of the children during the week of August 26, 2002, and to provide a verbal recommendation within one week of the evaluations. (Id., at ¶ 1.) Dr. Fialkov conducted the evaluations of the children on September 5, 2002, and recommended that the children be provided with therapy.

On his own, Plaintiff arranged for psychological evaluations of himself and his children to be conducted on September 7, 2002, by Dennis W. Kreinbrook, Ph.D. (Report of Dr. Kreinbrook, attached as Pl.'s Ex. 2 to Plaintiffs' Response in Opposition to Motion to Dismiss Filed on Behalf of All Identified Defendants except M. Jerome Fialkov, M.D. (hereinafter "Plaintiffs' Response to WCCB Defendants").) Dr. Kreinbrook, consistent with Dr. Fialkov, recommended that the children receive counseling (Id. at 4.)

Plaintiff then arranged for his children to begin the needed therapy with Dr. Kreinbrook on September 28, 2002. On September 26, 2002, however, counsel for Plaintiff learned that the WCCB had arranged for the children to be evaluated by William A. Sorrells, M. Ed. Plaintiff was told that the children must proceed with therapy as arranged by the agency, rather than the therapy scheduled with Dr. Kreinbrook.

Mr. Sorrells evaluated the children on September 27, 2002, and issued a report on October 3, 2002. He too recommended that the children receive counseling. Mr. Sorrels felt he could conduct counseling with E.P, but he recommended that H.P., the younger child, attend counseling with a person qualified in treating younger children.

Mr. Sorrells began counseling with E.P. on October 8, 2002. No other appointments were scheduled for E.P. until Plaintiff himself called Mr. Sorrells. Finally, on October 18, 2002, appointments were made for E.P. for individual counseling on October 25, 2002, and for the family on October 28, 2002. The younger child, H.P., was not scheduled for any counseling until November 7, 2002, in part because the chosen therapist was on vacation when the agency first contacted him.

All parties were present for the October 3, 2002 hearing, however, the hearing was continued over the objection of Plaintiff because an earlier hearing had taken up the time set aside for Plaintiff's hearing and the Court had other hearings scheduled for later in the day. The Court set aside the entire day of October 10, 2002 for the rescheduled hearing.

At the October 10, 2002 hearing, the Judge explained in open court that the Judge, Dr. Fialkov, the parties, and counsel had engaged in "extensive discussions" resulting in an agreement regarding dependency. (Transcript of October 10, 2002 Hearing, at 3, attached as Pl. Ex. 10 to Plaintiff's Documents in Opposition to Motion to Dismiss.) Based on this agreement the Court found that there was clear and convincing evidence that the children are dependent and in need of services, but that the children could be returned to their home with their father. ( Id. at 9-10.)

Because of the delay in getting treatment for his children, Plaintiff filed a motion to obtain the recommended therapy and counseling for his children. ("Motion to Allow [Father] to Obtain Recommended Counseling and Therapy for his Children in a Timely Manner," attached as Pl.'s Ex. 3 to Plaintiffs' Response to WCCB Defendants.) A hearing on the motion was held on October 31, 2002. The Judge denied Plaintiff's motion without prejudice in light of the fact that therapy had started for E.P. and was going well, and therapy for H.P. was scheduled for November 7, 2002. (Transcript of October 31, 2002 motion hearing, at 14, attached as Pl. Ex. 4 to Plaintiffs' Response to WCCB Defendants.)

The Foster Family and the WCCB's Insufficient Response

Plaintiff alleges that both children complained to Defendant Ryan Abel about the foster family, but that Mr. Abel failed to address the complaints. (Am.Compl., at ¶ 57.) Among other things, the children complained to Mr. Abel that the biological children in the home physically and verbally assaulted them. (Am.Compl., at ¶ 57.)

On August 26, 2002, shortly after Spectrum began transporting the children for supervised visits with their Father, the Foster Mother told Spectrum's visitation supervisor, James Henley, that she was not going to let the children's visits get in the way of her life. (Am.Compl., at ¶ 61.) Mr. Henley contacted Plaintiff on August 27, 2002, and told him that "he had grave concerns about the foster home" and that he was going to inform the WCCB of his concerns. (Am.Compl., at ¶ 62.) Plaintiff also alleges that at some unspecified time the Foster Mother hung up the telephone on Mr. Henley when he called her. (Am.Compl., at ¶ 63.)

Spectrum employees provided regular written reports to Mr. Henley, which were also provided to the WCCB. (Am.Compl., at ¶ 58.) Some of these reports showed that the children were telling the Spectrum employees about problems in the foster home. (Am.Compl., at ¶ 63.)

At one time or another the children reported either to Spectrum employees or someone else the following problems about the foster home:

* the foster mother told the children not to tell anyone about anything that happened in the foster home or to make any complaints;

* that the biological children in the home were "ticked off" at the children for getting them in trouble;

* that H.P. was repeatedly threatened not to talk to or complain to anyone about the foster home;

* that the children did not feel safe in the home;

* that their money and belongings were missing;

* the foster mother showed favoritism to her youngest biological daughter;

* the foster mother made fun of and humiliated E.P.;

* the foster mother threatened not to feed the children;

* H.P. was either threatened with being put in a closet, or actually was put in a closet;

* the children were not allowed privacy in their bedrooms or bathrooms;

* the foster mother told the children to stop complaining to the WCCB about the home;

* the foster mother told H.P. that she would starve him and tell the WCCB that he had run away; and

* the foster mother told H.P. to stop complaining about the other boys watching televison late at night in his room or else the television would be left on all night. (Am.Compl., at ¶¶ 64-65)

Defendant Sopko was informed as of September 13, 2002, of problems with the foster parents, the caseworker, his supervisor, the foster parent supervisor, and Mr. Henley's concerns about the foster home. (Am.Compl., at ¶¶ 66-68.)

On September 16, 2002, the caseworker supervisor, Kandee Lojas, informed Mr. Henley of new rules effective immediately due to the stress on the foster parent. (Am.Compl., at ¶ 69; Letter from Lojas to Henley, attached as Pl.'s Ex. 7 to Plaintiffs' Response to WCCB Defendants.) Ms. Lojas explained that henceforth the Spectrum employee is not permitted in the foster home and is not permitted to discuss the foster parents with the children. (Id.) In addition, Ms. Lojas informed Mr. Henley that the children were going to be advised not to discuss the foster parents or the foster home with the Spectrum employee. (Id.)

Because of these problems Plaintiff filed a motion on September 24, 2002, to remove the children from the foster home. ("Petition to Remove E.P. and H.P. from Placement in the Foster Home," attached as Pl.'s Ex. 6 to Plaintiffs' Response to WCCB Defendants.) Argument on the motion was scheduled for the October 3, 2002 hearing, which was continued to October 10, 2002. The issue was rendered moot when the Court returned the children to the Father at the October 10th hearing.

After regaining physical custody of his children, Plaintiff and his children continued with the WCCB arranged therapy through the end of 2002. ON January 9, 2003, the Court returned full legal custody of the children to Plaintiff. (Am. Compl. ¶¶ 53, 84.)

B. Claims Asserted

Plaintiff does not base any of his claims on the facts or circumstances regarding the WCCB's actions in response to his initial telephone call on July 9, 2002. That is, Plaintiff does not base any claim on the fact that the WCCB initially took custody of his children. Nor does Plaintiff object to the Court's ruling after the July 11, 2002 shelter hearing that the children should remain in the custody of the WCCB. Plaintiff's Amended Complaint instead focuses broadly on the Defendant's actions with regard to delay in proceeding with hearings, evaluations, and therapy on one hand, and Defendant's actions with regard to conduct occurring at the foster home on the other hand. Specifically, Plaintiff asserts the following claims in a nine-Count Amended Complaint.

In Count I, Plaintiff asserts a 42 U.S.C. § 1983 civil rights action against all Defendants alleging that they violated his and/or his children's rights to liberty, and procedural and substantive due process under the First, Fourth, and Fourteenth Amendments to the United States Constitution. (Am. Compl. ¶¶ 88-100.) Specifically, Plaintiff claims that all Defendants violated

*the children's substantive due process right to placement in an appropriate, safe setting;

*the family's liberty interest in family integrity, familial associations and the right to freedom of intimate associations;

*the family's right to live where they choose;

*the children's right to appropriate therapeutic and counseling services in a timely manner;

*the children's First Amendment right to freedom of protected speech; and

*the children's right to be secure in their persons and property.

In addition, in Count I, Plaintiff alleges municipal liability against the Defendants stating ...

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