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Rees v. Office of Children and Youth

September 30, 2010


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.


This civil action arises from events involving the Plaintiff's unsuccessful attempts to obtain custody of her two minor grandchildren following the death of her son, who was the children's biological father. Plaintiff Barbara Rees has asserted a cause of action under 42 U.S.C. § 1983 for the alleged violation of her federal civil rights as well as various claims premised on Pennsylvania tort law. She has named as Defendants the Erie County Office of Children and Youth ("OCY") and several of its employees and/or agents.

The case was originally commenced in the Erie County Court of Common Pleas and removed to this Court pursuant to 28 U.S.C. § 1441. This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331, 1343(a) and 1367(a).

Presently pending before me is the Defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow, the motion will be granted insofar as it relates to Plaintiff's federal claim under § 1983. As to the remaining state law claims, this Court will decline to exercise supplemental jurisdiction and will instead remand those claims for further proceedings in state court.


Pearl Dombrowski ("Pearl") and Ruby Peterson ("Ruby") are the minor children of Carrie Peterson ("Peterson") and Joseph Dombrowski, who is now deceased. (Complaint ¶¶ 1-2.) Plaintiff Barbara Rees ("Rees") is the mother of Joseph Dombrowski and the paternal grandmother of Pearl and Ruby. (Id. at ¶ 4.) Defendants Karleen Vogt ("Vogt") and Cyndi Valimont ("Valimont") were employed at all relevant times by OCY as, respectively, a caseworker and a supervisor. (Id. at ¶¶ 8, 11.) Defendant Amy Jones, Esq. is an assistant solicitor for the County of Erie who represented OCY in matters pertinent to this litigation. (Id. at ¶ 14.)

On or about April 5, 2007, Defendant OCY began an investigation of alleged neglect on the part of Pearl and Ruby's biological mother, Peterson. (Complaint ¶ 20.) Three months later, in July of 2007, the children were taken into custody by OCY and placed into a foster home as the result of a judicial determination that continued placement in Peterson's home would be contrary to the children's welfare. (Id. at ¶¶ 21-22.)

Prior to these events and the involvement of OCY, Pearl had spent significant time with Rees and, with the agreement of her biological parents, had been cared for by Rees over a period of seven months. (Complaint ¶ 18.) During this same period of time, Peterson had denied Rees custody over Ruby on the ground that she did not believe Joseph Dombrowski to be Ruby's biological father. (Id. at ¶ 19.)

On August 4, 2007, shortly after the children had been placed into an OCY foster home, Joseph Dombrowski died unexpectedly. (Complaint ¶¶ 21, 24.) On or about that date, genetic tests were taken by the Domestic Relations Section of the Erie County Court of Common Pleas. (Id. at ¶ 25.)

A few days later, a court hearing was held concerning a Dependent Child Petition filed by OCY on behalf of the children. (Complaint ¶ 26.) At this hearing, Rees notified Defendant Jones and OCY that she wished to assume the responsibilities of her deceased son and care for the children. (Id. at ¶ 27.) In addition to Rees, several members of the children's biological family advised OCY that they wished to care for and/or adopt Ruby and Pearl. (Id. at ¶ 28.) Defendants nevertheless refused to allow Rees or other family members to care for or adopt the children on the ground that the paternity of the children had not been officially determined. (Id. at ¶ 29.)

On or about November 29, 2007, the results of the genetic tests revealed Joseph Dombrowski to be the biological father of both Pearl and Ruby. (Complaint ¶ 31.) Rees was then granted permission to visit the children each week for a period of one hour at the home of the foster parents. Later, these visits were expanded to include activities outside of the foster home for a period of up to one and one-half hours, including travel time. (Id. at ¶¶ 32-33.)

On December 12, 2007, Rees completed an Emergency Caregiver Kinship Authorization and Consent form and delivered the same to OCY. (Complaint ¶ 34.) Rees was subsequently notified by Defendants Vogt and Valimont that her form would remain on file and that the children would be placed with her only if they were not reunified with their biological mother. (Id. at ¶ 35.)

On or around January 29, 2008, Rees's then-attorney, James Geronimo, Esq., sent correspondence to Defendant Jones and OCY requesting increased visitation time and reiterating Rees's willingness and ability to take over the care of the children. (Complaint ¶¶ 36-37.) Following this request, Vogt and OCY terminated Rees's weekly visits with the children without stating any reason. (Id. at ¶ 38.)

Two months later, in March of 2008, Valimont and Vogt advised Rees that her weekly visits would be reinstated under the conditions that they occur at the convenience of the foster parents and that they not exceed two and one-half hours. (Complaint ¶¶ 40-41.) Thereafter, Rees sought overnight visits with the children but was informed by Vogt that such visits would not be allowed as they would interfere with the reunification process between the children and Peterson. (Id. at ¶¶ 42-43.) Notwithstanding this, the children's foster mother gave Rees verbal approval of her request and indicated that Peterson had never made any attempt to see the children.

(Id. at ¶ 44.)

On or around July 7, 2008, Rees was notified by OCY that the reunification process between the children and their mother had been terminated. (Complaint ¶ 45.) That same day, Defendant Valimont telephoned Rees about her interest in pursuing the Kinship Care process, and the process was re-initiated two days later on July 9. (Id. at ¶¶ 46-47.) In spite of the kinship care process having been renewed, Plaintiff was notified later that month by the children's foster mother that OCY had informed her it would require agency approval for each of Rees's visits with the children. (Id. at ¶ 48.)

On or around July 28, 2008, the Court of Common Pleas entered an order involuntarily terminating Peterson's parental rights. (Id. at ¶ 49.) At that hearing, the children's guardian ad litem recommended that the children be placed with Rees as next of kin; however, Defendant Vogt recommended adoption by the foster parents on the ground that the children's father, who had been raised by Rees, had committed suicide. (Id. at ¶¶ 50-52.) Notwithstanding these events, Rees's Kinship Care application was approved on or around August 28, 2008 (Id. at ¶ 53.)

Approximately two weeks later, Rees filed a formal grievance against OCY with Mary Ann Daniels, Director of the Erie County Department for Human Services, Office of Children and Youth Services. (Complaint ¶ 54.) The following day, Rees learned that OCY was canceling her weekly visits with the children and that it had instructed the children's foster mother not to allow Rees any contact with them. (Id. at ¶ 55.) Rees avers that this action was taken in retaliation for the formal grievance she filed against the Defendants. (Id. at ¶ 56.) This cancellation of visits occurred notwithstanding Defendants' awareness that Rees was eligible to care for the children and that her kinship care application had been improved. (Id. at ¶ 57.) On or around September 22, 2008, OCY transferred responsibility for the matter to a new caseworker, Greg Phillips. (Complaint ¶ 58.)

The following month, Rees filed a second formal grievance against the Defendants, this time with the United States Department of Health and Human Services, which forwarded the grievance on to the Pennsylvania State Office of Children, Youth and Families. (Id. at ¶¶ 59-61.) By e-mail dated October 30, 2008, Ms. Daniels acknowledged that OCY had been directed to facilitate visitation with Rees and expressed her own uncertainty as to the reason for the "hold-up." (Id. at ¶ 62, Ex. E.)

On or around November 3, 2008, Rees received a letter from the Director of OCY stating that she had been selected for "random" urine screens for drugs and alcohol requiring her to call the office every day of the week starting immediately to see when she would have to submit to these tests. (Complaint ¶ 63.) The following day, Rees received an email from Cyndi Gariepy, Program Representative, Pennsylvania State Department of Public Welfare, indicating her concern that "[t]his case was handled very poorly by the agency." (Complaint ¶ 64, Ex. F.)

On or around November 17, 2008, Rees was advised that, as the result of an investigation of OCY at the state level, her case would be assigned to a new caseworker, Nicole Duplanti, and a new supervisor, Kim Warchol. (Id. at ¶ 66.) Rees was further advised that she would have to once again recommence the process of submitting to a home study and undergo additional daily "random" drug screening. (Id. at ¶ 67.) Rees ultimately chose not to participate in the second home study based on her frustration with the process and her treatment by the agency.

Following a "lengthy and thorough review" of OCY's actions by the Pennsylvania Department of Public Welfare, Western Region Office of Children, Youth and Families, the latter agency issued a report of its findings as set forth in correspondence dated January 2, 2009 and appended to the Complaint. (Complaint ¶ 68, Ex. G.) That report states, in relevant part, as follows:

The agency removed the children from their mother on July 27, 2007, and placed the children into an approved foster home. On July 30, 2007, the father of Pearl contacted the agency and requested his mother be considered as a placement resource. On July 31, 2007, the paternal grandmother, Ms. Rees, attended the court hearing and requested consideration for kinship approval. The agency failed to consider the grandmother until a paternity test was completed on both children, even though Ms[.] Rees had previously cared for Pearl for seven months. It was not until December 2, 2007, that paternity was verified. A formal kinship referral was not submitted to Family Services until July 9, 2008. Ms. Rees was approved on August 28, 2008. After approval, the children's goal was changed to adoption and all visits were stopped between the children and their grandmother. The agency's plan was to recommend the foster parents adopt the children as they had "developed a bond". Although the grandmother was approved, there was no motion by the agency to move the children, as the bond had already formed between the children and the foster parents.

The Department finds the actions of the agency a direct violation of the Kinship Care Policy and the Adoption and Safe Families Act of 1997. There was no requirement of paternity necessary prior to consideration of Ms[.] Rees as a kinship resource. The agency's failure to conduct an appropriate and immediate kinship study severely disrupted any bond that would have formed between the children and their grandmother.

(Complaint Ex. G.)

Rees alleges that, despite their awareness that several members of the children's biological family wished to care for and/or adopt the children, the Defendants refused to allow herself or any other member of the children's family to adopt or care for them and instead "adamantly and aggressively opposed placement of the children with [her] in favor of the foster parents." (Complaint ¶¶ 28-29, 91.) This refusal of access, she claims, was without any reasonable basis and in contravention of Defendants' duty, pursuant to the Kinship Care Policy adopted by the Pennsylvania Department of Human Services and the Adoption and Safe Families Act of 1997, to "make reasonable efforts and document child specific efforts to place a child for adoption, with a relative or guardian." (Complaint ¶¶ 30, 74, 77, 88-90, 92.) She further claims that, "[t]o date, the bond and relationship between [herself] and her grandchildren remains irreparably damaged" due to the Defendants' actions. (Id. at ¶ 83.)

As a result of the foregoing, Rees has alleged several claims premised on the violation of her rights or duties owed her under state and federal law. Counts I and II assert claims under 42 U.S.C. § 1983 for the alleged violation of her federal civil rights. Counts III and V assert state law claims for negligence and gross negligence, respectively. Count IV asserts a claim for negligence per se, based on alleged violations of the Adoption and Safe Families Act of 1997. Counts VI and VII assert respective state law claims for the alleged negligent and intentional infliction of emotional distress. Count VIII asserts a claim for municipal liability against OCY pursuant to 42 U.S.C. § 1983.

Defendants have filed a motion which requests, among other things, that this Court dismiss all of the federal § 1983 claims on the basis that they fail to state a cognizable cause of action upon which relief can be granted. Plaintiff has filed a brief in opposition, and the issues are now ripe for disposition.


In reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoting Grammer v. John J. Kane Reg'l Ctrs.-Glen Hazel, 570 F.3d 520, 523 (3d Cir.2009)). Moreover, [w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks and alterations omitted).



Counts I, II, and VIII all involve claims brought under 42 U.S.C. § 1983 to redress alleged violations of Rees's federal civil rights. That statute provides, in relevant part, that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 does not create substantive rights; instead, it "provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Gordon v. Lowell, 95 F. Supp. 2d 264, 268-69 (E.D. Pa. 2000) (quoting Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996)). Therefore, a plaintiff asserting a claim under § 1983 must establish both: (1) the deprivation of a right secured by the United States Constitution or federal law, and (2) that the alleged violation was committed by a person acting under color of state law. Id. Here, there is no dispute about the latter requirement, but the first is contested.

In Count I of the Complaint, Rees alleges that the Defendants have violated her constitutionally protected rights to privacy, familial association and integrity, and the maintenance, custody, care, and management of her grandchildren. In Count II, she alleges that Defendants violated her constitutional right under the Due Process Clause to equal access to the courts. Rees's theory of liability also incorporates allegations that the Defendants conspired together to deprive her of these rights. Counts I and II appear to be premised, respectively, on the Fourteenth Amendment's substantive and procedural guarantees against "depriv[ations] ... of life, liberty, or property, without due process of law."*fn1 U.S. Const. amend. XIV, § 1. We consider each count in turn.

1. Count I of the Complaint

Where, as here, liberty interests are asserted as a basis for § 1983 liability, the court must initially address the "threshold issue" of "whether the plaintiff has alleged the deprivation of an actual constitutional right at all." McCurdy v. Dodd, 352 F.3d 820, 825-26 (3d Cir. 2003) (internal quotations and ending citations omitted). See also Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000) (en banc) (citation omitted). The Supreme Court has observed that the liberty interests of parents in the care, custody, and control of their children "is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel, 530 U.S. at 65. Rees contends that she enjoys that same constitutional protection relative to her grandchildren. Count I of her complaint may be understood as asserting three variations of this purported liberty interest: (i) Rees's interest in directing the upbringing (i.e., "maintaining custody, care and management") of her grandchildren; (ii) her interest in keeping her extended family intact (i.e. "family integrity") and (iii) her interest in enjoying the companionship of her grandchildren (i.e., ...

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