The opinion of the court was delivered by: Ambrose, District Judge
OPINION and ORDER OF COURT SYNOPSIS
The parties have filed cross motions for summary judgment. (Docket Nos. 41 and 44). The parties have also responded in opposition thereto. After careful consideration as more fully set forth below and based on the submissions of the parties, Plaintiff‟s Motion for Summary Judgment (Docket No. 44) is granted in part and denied in part and Defendants‟ Motion for Summary Judgment (Docket No. 41) is denied.
Plaintiff, John Doe, is a resident of Fayette County, Pennsylvania. Plaintiff has a high school education. Plaintiff was married to Jane Doe but they separated in 2005. They are the parents of three children who at all relevant times were under the age of ten. The children have little contact with their mother, Jane Doe. The three children lived with Plaintiff.
David Madison was the Fayette County Children and Youth Services ("FCCYS") administrator. Rebecca Plichta was the intake supervisor for FCCYS. Gina D‟Auria was the FCCYS case manager and Plichta‟s direct supervisor. Brian Davis was a caseworker for FCCYS from February 2004 until May 2007. Kim Schuessler worked at FCCYS from April 2001 to October 2007. In November 2006, she switched from the foster care unit to the intake unit. Renee Coll was a caseworker for FCCYS from June 2007 through June 2008.
On Friday, September 22, 2006, Davis received a report about suspected child abuse that was made to the FCCYS office at 9 a.m. stating that K.K., a sixteen year old female, was living with Plaintiff and having a sexual relationship with him. K.K. was not related to Plaintiff but had lived in his house with her father, her father‟s girlfriend, and her siblings from the end of May 2006 until August 2006 due to the lack of electricity where K.K. and her family had lived.
K.K. had disclosed the relationship to her mother, who told her that she could no longer see Plaintiff. K.K. then became suicidal and was admitted to Highlands Hospital and subsequently transferred to Clarion Psychiatric Hospital, which is where she was when the report was made to FCCYS.
After receiving the report, Davis called Clarion County CYS and asked that a caseworker there visit K.K. at the hospital. Davis also called the Belle Vernon station of the Pennsylvania State Police to report the abuse allegation. He then called K.K.‟s father to arrange for K.K. to be interviewed at CYS the following Monday, September 25, 2006.
On September 22, 2006, Davis also made a telephone call to Plaintiff‟s home to notify him that FCCYS had received a report of suspected child abuse regarding his relationship with K.K. During the call, Davis informed Plaintiff that as a result of the investigation, the agency was requesting that his children reside elsewhere. Davis requested that Plaintiff find another place for his children to live because it was FCCYS‟ standard practice to request that alleged perpetrators of sexual abuse not have contact with their children during an investigation. Plaintiff told Davis that his children could stay with his parents. At the time, his son was 6 and his daughters were 4 and 3. Davis did not tell Plaintiff that he could not have contact with his children because Davis believed that it would be okay for the children to see their father as long as their contact with him was supervised by Plaintiff‟s parents. The telephone conversation lasted about 10 minutes.
Davis then called Plaintiff‟s parents to ask if Plaintiff‟s children could stay with them. Plaintiff‟s father agreed that the children could stay and that the children would not be unsupervised with their father. David did not inspect or visit Plaintiff‟s parents‟ house before the Plaintiff‟s children left Plaintiff‟s home to stay with them.
Davis met with K.K. and a Pennsylvania state trooper on September 25, 2006. At that time, K.K. told them that she did not have sex with Plaintiff prior to her 16th birthday. K.K. turned 16 on September 12, 2006.
Davis set up a meeting with Plaintiff at the FCCYS office for September 29, 2006. According to Davis, the purpose of that meeting was to solidify the safety plan that he and Plaintiff had verbally agreed to on the phone and put it in writing.
A safety plan is written agreement between the parties to keep children safe during an assessment or an investigation. FCCYS safety plans do not always involve separation of parents and children; instead, safety plans should establish "the least restrictive measures necessary to assure safety" of children. (Docket No. 47-2, p. 4).
At the meeting, Davis explained to Plaintiff that under the safety plan his parents were required to be present whenever he saw his children. That meant that Plaintiff would be in violation of the safety plan if he was in his parents‟ living room with his children while his parents were in their bedroom. Both Plaintiff and Davis signed the safety plan ("2006 safety plan"). This 2006 safety plan was reviewed and approved by Davis‟ supervisor at the time.
At that time, Davis was not aware of any allegations that the Plaintiff‟s children had been abused. Davis did not explain anything further to Plaintiff because Plaintiff left the meeting.
On October 11, 2006, Davis visited Plaintiff‟s parents‟ home to inspect their house to ensure that it was safe, that the children had a place to sleep, and that there was enough food to eat. There is no evidence that Davis saw or spoke with Plaintiff‟s children at this or any other time.
On October 30, 2006, Plaintiff‟s father spoke with Davis at the FCCYS office. He reported to Davis that over the weekend Plaintiff had made threats against Davis and his family. Davis reported the threats to the state police. Plaintiff pled guilty to his threats against Davis. After Davis finished his investigation, he separated himself entirely from the case.
On November 17, 2006, Davis sent Plaintiff a letter notifying him that FCCYS determined that substantial evidence existed to indicate he committed sexual abuse of K.K.. The "indicated report" was to be maintained in the Statewide Central Register. The indicated report was filed by Davis and approved by Plichta.
An "indicated report" is a child abuse report made pursuant to the Child Protective Services Law if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on available medical evidence, the child protective service investigation, or an admission of the acts of abuse by the perpetrator. "Child abuse" includes any recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age; an act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age; or any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age. A perpetrator is a person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, and individual residing in the same home as a child or a paramour of a child‟s parent. Any person named as a perpetrator in an indicated report of child abuse may, within 45 days of being notified, request the report be amended or expunged on the grounds that it is inaccurate.
Plaintiff exercised his right to a hearing to determine whether the indicated report should be expunged. The Commonwealth Court ultimately granted Plaintiff‟s request to expunge the indicated report on May 19, 2009. The Commonwealth Court denied an application for reargument on July 16, 2009. On December 1, 2009, the Pennsylvania Supreme Court rejected FCCYS‟ petition for allowance of appeal.
From September 2006 to August 1, 2007, Plaintiff obeyed the 2006 safety plan‟s requirement that he avoid any unsupervised contact with his children. The children continued to live with Plaintiff‟s parents, and Plaintiff visited them every day under the supervision of his parents. At no point between September 2006 and August 2007 did any FCCYS employee believe that Plaintiff had abused or mistreated his children in any way. No one from FCCYS had any contact with Plaintiff, his parents, or his children between December 2006 and July 31, 2007.
On Wednesday, August 1, 2007, Schuessler, the on-call caseworker, received a report that Plaintiff was having contact with his children. Schuessler spoke with D‟Auria. Then Schuessler called the Pennsylvania State Police. Schuessler, accompanied by two Pennsylvania State police, arrived at Plaintiff‟s parent‟s home between 10:00 p.m. and midnight to inform Plaintiff‟s parents that Plaintiff was not allowed to have any contact with his children. Schuessler told Plaintiff‟s parents that she had just discovered that Plaintiff was having supervised visitation with his children and that because Plaintiff was an indicated perpetrator of sexual abuse, such supervised visitation violated FCCYS‟ protocol because Plaintiff had not completed treatment.
The Protocol was developed by the Agency‟s policy committee and was adopted by FCCYS in 1996. The Protocol applies whenever a perpetrator of sexual abuse (indicated or founded), who is not receiving treatment, is living with, providing care for, or having contact with a minor child. It applies regardless of how long ago the abuse occurred. The Protocol states, in part, that:
Imminent risk of sexual abuse is interpreted to mean the following:
There must be substantial evidence that an action on the part of the alleged perpetrator placed the child at imminent risk of sexual abuse/exploitation; or
There must be substantial evidence that the alleged perpetrator had known or should have known of the risk of sexual abuse and failed to exercise reasonable judgment in preventing such risk. (Docket No. 50, p. 18). The purpose of the Protocol is "to outline the policies and procedures for sexual offenders and children. It is the first and foremost purpose of the Agency to assure that children are safe in their homes. Id.
The Protocol also provides the following:
In the event that the agency receives information that a perpetrator of sexual abuse is living with, providing care for, or having contact with a minor child the following will occur: ●An immediate response to the report will occur. The Agency Caseworker will review all agency data bases, Meagan's Law Web Site and Court information to verify the information received. The assigned intake caseworker will then attempt to locate the child. ● An interview will occur with the child to determine if the perpetrator has had or currently has access to the child. ● An interview will occur with the parent to determine if they had any knowledge of the offenses. ● An interview will occur with the offender to determine if he/she is aware that they are not permitted access to a child. Further it will be determined if the offender has completed any form of offenders counseling. ● A safety plan will be developed with the family and offender. Until such time that treatment and recommendations can be verified, the sexual offender will not be permitted to have contact with children.
● If the family and or offender refuse to abide by the safety plan the caseworker will contact the police in order to assess for protective custody of the child. ● In the event that counseling has been obtained a release will be requested to determine the appropriateness of counseling as well as the compliance with treatment.
The caseworker will make contact with the therapist for a recommendation. ● In the event that an individual has not received treatment the individual will not be permitted to have contact with any child until such time that successful completion of treatment or recommendation by a recognized offender's therapist that the individual is permitted to be around children. ● FCCYS will make a referral for evaluation or treatment as deemed appropriately. ● In the event that treatment and/or assessment has been obtained all recommendations will be followed and included in the safety plan.
Id. at 19. The Protocol was reviewed and approved by Madison. FCCYS does not have any training materials related to the Protocol.
Schuessler provided Plaintiff‟s parents with a new safety plan ("August 1, 2007, safety plan"). She explained to Plaintiff‟s mother that if she did not agree to the safety plan, the police were there to assess for protective custody and that if they felt the children were not safe, they could remove the children to protective custody or CYS could file a petition with the court. The August 1, 2007, safety plan required Plaintiff‟s parents to prohibit all contact between Plaintiff‟s children and Plaintiff, including "faceto-face, telephone, e-mail, or third-party messages." (Docket No. 49, p. 25). The consequences for failing to abide by the August 1, 2007, safety plan include FCCYS taking court action to obtain the parents‟ cooperation and the removal of the children from the home for foster care placement.
Plaintiff‟s mother signed the safety plan, telling Schuessler that she and her husband would do whatever the agency requests "as they will not risk losing the children over the situation." If Plaintiff‟s mother had refused to sign the safety plan at that time, Schuessler would have asked the police to assess for protective custody.
During this time the children were asleep. Schuessler looked in on the children but did not talk to them.
Schuessler did not know that there was a prior written safety agreement between FCCYS and Plaintiff nor was she aware of what the previous caseworkers did. She based her response to the report about Plaintiff‟s contact with his children on FCCYS‟ Protocol for Sexual Offender and Contact with Children ("Protocol"). The only reason the FCCYS asked Plaintiff‟s parents to sign the August 1, 2007, safety plan prohibiting all contact between Plaintiff and his children was because Plaintiff had been indicated as a perpetrator of sexual abuse for his relationship with K.K. and under the Protocol he cannot have any contact with any children.
Plichta assigned Plaintiff‟s case to Coll. On August 2, 2007, Plaintiff telephoned Schuessler to determine why he could not have supervised contact with his children. He was transferred to Coll. During his conversation with Coll, Coll asked Plaintiff to agree to a safety plan barring him from having any contact with his children. Coll read the safety plan over the telephone ("August 2, 2007, safety plan").
The August 2, 2007, safety plan stated as follows: [Plaintiff] may not have any form of contact with ANY child pending successful completion of sexual offender‟s treatment program. I understand that I must provide verification of the completion of treatment, in writing, prior to having contact with any child. I understand that contact includes but is not limited to face to face, telephone, e-mail, letter, or third party messages.
I further understand that failure to abide by this safety plan will result in the Agency taking court action against me which may include the removal of my child/ren from my home for foster care placement. (Docket No. 49, p. 26). At the time of that call, Plaintiff had already spoken to his mother about the circumstances of Schuessler‟s August 1, 2007, visit to his parents‟ home and knew that his mother had signed a safety plan requiring her to bar all contact between Plaintiff and his children. Thus, Plaintiff agreed to the August 2, 2007, safety plan.
Coll did not provide any information to Plaintiff about what court action the agency might take if he had contact with his children. Coll testified that she believed that agency policy required her to seek a safety plan requiring no contact with any child because Plaintiff was an indicated perpetrator of sexual abuse. Coll did not know at that time the basis for Plaintiff‟s indication.
On August 3, 2007, Plaintiff called Coll to ask her what he had to do to have contact with his children. She told Plaintiff that the first step was to get an assessment from George Yatsko. She also told Plaintiff that he would need to be in the offender‟s program to qualify for supervised contact with his children. She provided Yatsko‟s number to Plaintiff after he requested it.
On August 22, 2007, Coll conducted a scheduled home visit with Plaintiff. She explained to Plaintiff that although Davis had told him he could have supervised contact with his children, that was not the policy of the agency. Coll gave Plaintiff no reason other than the Protocol for why he could no longer have contact with his children. She also handed him a non-discrimination policy and reiterated that he needed to have an assessment by Yatsko and to follow Yatsko‟s recommendations. She did not provide any further information to Plaintiff regarding his rights. Madison testified that he was not aware of any information that FCCYS is legally required to provide to parents at the time they are asked to sign a safety plan.
On August 23, 2007, Plaintiff left a voice mail for Coll that he had scheduled an assessment with Yatsko.
Yatsko is a counselor who has a master‟s degree in science and education with an emphasis on community counseling. He is not a psychologist, psychiatrist, or a social worker. He does not have a doctorate degree or any professional certification or license.
Yatsko has been under contract with FCCYS since 1989 to provide, inter alia, sex offender counseling. He was the only counselor under contract to provide treatment for Fayette County at the time. Yatsko‟s 2007 contract with Fayette County provided that he would receive $55.00 for every hour of group therapy he provided, regardless of the number of people in each session. He also received $55.00 per hour for every hour of individual counseling he provided. He offers a two-hour group therapy session for sex offenders once a weeks and individual counseling on an as-needed basis.
Attendance at the group therapy session is required. To be a part of the program, participants must adhere to the following: no alcohol or drugs, no pornography, never be alone with someone under the age of 18 unless it is allowed by CYS, and never touch someone under the age of 18 unless CYS is aware of it.
Yatsko‟s first contact with Plaintiff was August 21, 2007, during a group sex offender counseling session. After the meeting, Yatsko met with Plaintiff individually for approximately one hour and forty minutes. Yatsko was aware during that meeting that the basis for FCCYS‟ filing of the indicated report on Plaintiff was that he had a relationship with a teenage female who looked older. Based on his meeting with Plaintiff, Yatsko told FCCYS that he did not believe that "we were going to have to worry much about prepubescent children as much as impulse control for older teenage girls." At the time of the meeting Yatsko had not had any contact with Plaintiff‟s parents or his children, but he did know that he had not been accused of abusing his own children. Plaintiff claims that Yatsko told him that while he could get his children back, he would never be allowed to be alone with them. At the end of the meeting, Yatsko enrolled Plaintiff in the program.
On August 28, 2007, Yatsko left a voice mail message for Coll stating that he assessed Plaintiff at a very low risk with prepubescent children. Also on August 28, 2007, Plaintiff told Coll that based on the advice of his attorney, he was not going to attend any more sex offender counseling sessions with Yatsko. Coll then called Plaintiff‟s attorney who confirmed that he had advised Plaintiff not to attend the program due to Yatsko‟s requirement that participants admit to being perpetrators of abuse. He told Coll that if Plaintiff admitted to being a perpetrator, it would destroy his appeal. Coll told him it was the agency‟s policy that Plaintiff could not have supervised visits with his children unless he was attending the program.
On September 11, 2007, Coll and Plichta had a phone call with Yatsko because there was some confusion about whether Plaintiff needed to be in the sex offender program. Plichta explained to Yatsko that Plaintiff was refusing to participate in the program based on his attorney‟s advice. At that time Plichta was aware that Yatsko had said that Plaintiff was at low risk to re-offend. She was also aware that Plaintiff‟s attorney advised him not to participate in the program because he believe that as part of the program participants are required to admit the facts underlying the agency‟s ...