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Charles Hayes and Victoria L. Hayes, Administrators of the Estate of v. Erie County Office of Children and Youth

March 29, 2011


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


This civil action arises out of a tragic case in which Brittany Legler, a mentally handicapped teenager, was killed at the hands of her adoptive mother, Lisa Iarussi. Plaintiffs Charles Hayes and Victoria L. Hayes, the Administrators of Brittany's estate, have brought this lawsuit against the Erie County Office of Children and Youth ("OCY") and several of its present or former employees,*fn1 claiming, among other things, that the Defendants violated Brittany's federal civil rights by virtue of their involvement in first placing Brittany with Iarussi and later failing to adequately investigate or address numerous reports of suspected abuse perpetrated upon Brittany by Iarussi.

Presently pending before the Court is a motion by the Defendants for summary judgment. This Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1343(a) and 1367(a). For the reasons set forth below, the motion will be granted.


In adjudicating a motion for summary judgment, we apply the well-established legal standard presently set forth in Fed. R. Civ. P. 56(a), pursuant to which summary judgment shall be granted when no genuine dispute exists as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "A disputed fact is 'material' if it would affect the outcome of the suit as determined by the substantive law," Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 771 (3d Cir.2009) (citation omitted), and a factual dispute is "genuine," and thus warrants trial, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 252 (1986). Accordingly, in order for a claim to survive summary judgment, "there must be [significantly probative] evidence on which the jury could reasonably find for the plaintiff." Id. For purposes of Rule 56, we assume that the non-moving party's allegations are true and give the non-moving party the benefit of the doubt when those allegations conflict with the moving party's claims. Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir.1995). However, summary judgment must be entered against any party unable to present sufficient evidence in support of an essential element of a claim because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

With this standard in mind, we review the evidence of record. Except as otherwise indicated, the following facts are undisputed.


A. Events Leading to Brittany's Adoption

Brittany Legler first came into contact with OCY in 1998 when her biological family was referred to the agency for general neglect. (Defs.' Ex. 24 [126]*fn2 at ¶¶ 4-5.) In December of 1998, the case was assigned to Defendant Carol Gallagher, an ongoing services case worker for OCY. (Id. at ¶ 6; Defs.' Ex. 9 [81] at pp. 2, 10.)*fn3 Gallagher was supervised at the time by Defendant Cindra Vallone. (Defs.' 9 [81] at pp. 2, 10; Ex. 24 [126] at ¶ 2.)

Initially, Brittany and her siblings were placed in the care of their biological father due to the fact that their mother had allowed a known perpetrator of sexual abuse to have access to the children. (Defs.' Ex. 9 [81] at p. 30.) However, the children were later removed from their father's care when concerns surfaced that the father himself might be committing sexual abuse. (Defs.' Ex. 24 [126] at ¶¶ 7-14.)

Brittany was found to be a dependent child by the Erie County Court of Common Pleas and detained at a foster home placement because of a finding of neglect, excessive truancy, and lack of supervision, exposure to known sexual perpetrators, and possible sexual abuse. Her placement into foster care occurred on April 12, 1999. (Defs.' Ex. 24 [126] at ¶ 7; Defs.' Ex. 9 [81] at p. 6.)

In July of 1999, Brittany began receiving counseling services through the Sexual Abuse Initiative Program run by Family Services of Northwest Pennsylvania. At that time, it was reported that Brittany was developmentally delayed, had a history of sexual abuse, and had been in the presence of a known perpetrator when in her mother's care. In her foster care placement she was displaying aggressive and manipulative behavior and was having difficulty understanding personal safety issues. (Defs.' Ex. 19 [91] at p. 1.)

Over the course of the ensuing months, Brittany disclosed to Gallagher that she didn't want to live with her father and his girlfriend, stating that the girlfriend was "mean" and "locks them out of the house" (Defs.' Ex. 24 [126] at ¶ 8.) Eventually, Brittany further disclosed that she had suffered sexual abuse at the hands of her father and his girlfriend, which resulted in the matter being taken up by law enforcement authorities. (Id. at ¶¶ 9-14.)

Brittany continued to reside in foster care from April 1999 to May 2000. Although she suffered no major problems in that setting, a decision was made to find a permanent placement for Brittany, as her foster family was not interested or able to make a commitment to adopt. (Defs.' Ex. 9 [81] at pp. 6-8.)

Meanwhile, Brittany's biological mother had been residing with several of Brittany's younger siblings at the Mercy Center for Women, where she received counseling and other services designed to prepare her for a return to independent living. As the end of the 1999-2000 school year approached, it remained OCY's goal to eventually reunify Brittany with her biological mother. (Defs.' Ex. 9 [81] at p. 8; Ex. 4

[76] at p. 2.) During a May 2, 2000 court hearing, OCY requested another six-month period for purposes of maintaining the goal of reunifying Brittany with her mother. In response, the juvenile court issued an order allowing OCY to proceed with a concurrent plan of attempting to find an alternative placement for Brittany while simultaneously pursuing the goal of reunification. (Defs.' Ex. 9 [81] at pp. 8-9.)

At some point while Brittany was still in foster care, Lisa Iarussi was identified as a possible permanent placement source for Brittany. Iarussi was a former classmate and friend of Brittany's mother, who had known Brittany since her infancy and had frequently cared for her. (Defs.' Ex. 4 [76] at p. 2.)

In April of 2000, OCY contracted with Family Services of Northwestern Pennsylvania to perform a kinship family profile of Iarussi. The profile was performed by Ann Badach, an adoption caseworker, and summarized in a report dated July 27, 2000. (Defs.' Ex. 24 [126] at ¶ 15; Defs.' Ex. 4 [76].)

In the course of conducting her study, Badach had several contacts with Iarussi, including three interviews of Iarussi at her mobile home in Millcreek Township. Badach reported that Iarussi was motivated to provide kinship care for Brittany partly because of the "close bond she has developed with Brittany over the years since her birth." (Defs.' Ex. 4 [76] at p. 2.)

Badach's study involved obtaining Iarussi's biographical information, from which she learned that Iarussi had been diagnosed as a child with Attention Deficit Disorder ("ADD") and "'some type' of developmental delay" which had resulted in her receiving special education instruction during her grade school years. (Defs.' Ex. 4 [76] at p. 4.) After dropping out of highschool and attending cosmetology school, Iarussi had become involved with a man whom she subsequently married at age 17. This marriage, which Iarussi described as "very immature," lasted only a few months. (Id. at p. 5.) Following this break-up, Iarussi suffered a period of depression, which resolved successfully following a two-year period of treatment with Zoloft. (Id. at p. 6.)

Iarussi subsequently became involved in a 12-year relationship with an individual who suffered from alcohol addiction and who subjected Iarussi to emotional and physical abuse, including one incident which had resulted in the individual being arrested and jailed overnight for physically beating her. After quitting this relationship, Iarussi subsequently became involved with another man by whom she became pregnant. This individual became addicted to crack cocaine and left Iarussi shortly after the birth of their daughter, Abigail (hereinafter, "Abby"). (Defs.' Ex. 4 [76] at p. 6.)

At the time of her study, Badach found that Iarussi was living alone in a 14 x 80 mobile home with Abby, who was then four-years old. Iarussi was reportedly unable to hold steady employment due to her ADD but was receiving assistance in the form of food stamps, a monthly SSI check, and disability benefits for "ADD/Depression and a (untitled) Learning Disability." (Defs.' Ex. 4 [76] at pp. 5, 7.) Iarussi was also seeing a counselor at St. Vincent Behavioral Health in order to, as Badach described it, "assist her in steadying her sense of self-esteem and self-image due to years of suffering abuse in relationships." (Id. at p. 5.) According to the report, Iarussi had a supportive family and several close friends and felt her life was on a "solid footing." (Id.) She felt proud of her accomplishments as a single parent and had set a personal goal of becoming self-sufficient, employed, and a homeowner within five years. (Id.)

As a parent, Iarussi was felt to display a responsible attitude. Badach described her parenting style as "fairly calm and stable" and reported that Iarussi enjoyed being a parent and had a close bond with her daughter Abby, whom she loved very much. (Defs.' Ex. 4 [76] at p. 6.) Badach found Abby to be a bright, cheerful, and inquisitive child who was fond of Brittany and enjoyed Brittany's company. (Id.) Iarussi advised Badach that her plan for caring for Brittany was to parent Brittany in the same way that she had parented Abby. (Id.)

As part of her study, Badach conducted clearance checks with the City of Erie Police Department, the Pennsylvania State Police, OCY, and the Pennsylvania Department of Public Welfare's ChildLine. None of these sources reported any negative information concerning Iarussi. In addition, Badach requested access to Iarussi's records from St. Vincent Behavioral Health. After initially agreeing to this request, Iarussi revoked her consent, citing the fact that she preferred to not allow disclosure of her patient records until she established a stronger, long-term bond with her counselor. (Defs.' Ex. 4 [76] at pp. 6-7.)

Badach's study also involved feedback from four references, all of whom expressed support for Iarussi's interest in providing kinship care for Brittany. (Defs.' Ex. 4 [76] at pp. 7-9.) One of the four references was Plaintiff Victoria L. Hayes, Iarussi's biological sister. In a written reference dated May 19, 2000, Hayes described Iarussi as "a lot of fun" and someone whose strengths included the fact that she "loves being around children[,] reading to them, caring for them[.] [A]ny child would benefit from her care." (Defs.' Ex. 3 [75] at p. 1.) As to Iarussi's weaknesses, Hayes wrote that, "Lisa worries a lot [sic] which in this day & age you almost have no choice. It's better to be a worrier than not..." (Id.) She described Iarussi's personality as "a very sweet girl. She would give you the world on a silver platter if she could. She loves people & has many friends." (Id.) Hayes responded positively when asked whether she felt Iarussi would be able to provide a good home for Brittany: "[Lisa] is wonderful with children. I have six children of my own & everyone of them adore her. She would take good care of any child. It's just her nature." (Id.) Asked whether she had observed Iarussi with children, Hayes wrote, "She is really good with children. She listens alot [sic]. She can come down to their level so that the child knows that she understands & cares." (Id. at p. 2.) In commenting on Iarussi's experience or training, Hayes wrote, "I wouldn't say she has alot [sic] of experience but her caring ways about her mean she'll do a great job & children just attract to her..." (Id.) She further commented: "Lisa will make a wonderful foster mother to Brittany. They've always had a great relationship & I think Brittany feels safe with Lisa. Lisa will show her the best ways to get through life & keep out of trouble." (Id.) Asked whether she had any reservations about recommending her sister as a care-giver, Hayes wrote, "I have no doubt in my mind that Lisa will be a terrific care giver to any child. Especially to Brittany[.] [T]hey have already formed a close bond to each other." (Id.)

A second individual who had been a neighbor and friend of Iarussi's for approximately five years indicated that she felt "honored" to provide a reference for Iarussi. According to Badach, this source "described [Iarussi] as a person who displays mature judgment [sic], initiative, and devotion to children" and reportedly knew Iarussi to be "a calm and effective planner who is considerate and understanding of others." (Defs.' Ex. 4 [76] at p. 8.) This individual claimed to have no reservations about recommending Iarussi as a kinship caregiver; she "believe[d] that Lisa would be able to provide a good home for any child, as she has had Lisa care for her own seven-year-old on occasion." (Id.) In fact, this individual went to far as to say that she would recommend Iarussi over her own family members as a child care provider. (Id.)

A third source who had known Iarussi for over ten years as a neighbor and a friend described her (in Badach's words) as "a very giving and caring person who is outgoing and mixes very well with all kinds of people." (Defs.' Ex. 4 [76] at p. 8.) This woman reported having no reservations about recommending Iarussi as a kinship care provider and believed that Iarussi would be able to provide a good home. In addition, this individual claimed to have had occasion to observe Iarussi interacting with Brittany and reportedly "indicated that Lisa treats Brittany with the same kindness and respect that she does to her own daughter, Abby." (Id.)

A fourth reference, who had been friends with Iarussi for three years, described her as a caring, loving, and sentimental person whose strengths were being able to relate well to children. This source believed that Iarussi would be a very good kinship parent for Brittany and indicated that she would not hesitate to entrust her own children to Iarussi's care. (Defs.' Ex. 4 [76] at pp. 8-9.)

Badach's report, dated July 27, 2000, reflects her own impression that Iarussi was a "committed caregiver of children" and someone who could provide the "stability and continuity" that Brittany would need. (Defs.' Ex. 4 [76] at p.10.) It was noted that Iarussi had set a "lofty goal" in planning to be a self-sufficient homeowner within five years, and Badach expressed concern that this goal might be too difficult for Iarussi to meet, given her limited financial means. "In addition," Badach noted, Lisa is very guarded about her personal life. Initially, she was very agreeable to allow this worker access to her historical files with St. Vincent Behavioral Health, and, subsequently, her current counselor. However, the day after signing consents, Ms. Iarussi phoned this agency and spoke to a colleague in an anxious tone, requesting she receive the signed consents to destroy -- thereby denying access to any of her counseling records or therapists. At her request, this worker did return the signed consent for Ms. Iarussi to destroy. She indicated that she felt uncomfortable allowing access to information from "long ago" and also, most recent information from a (counseling) relationship that had barely begun to develop. (She had, at the time of consent, only met with her counselor twice.) Her cooperation was often shadowed by some sense of anxiety or distrust, which made some contents of her interviews rather difficult to attain. The type and scope of her "learning disability" and subsequent ADD diagnosis, resulting in SSI and Social Security Disability, are still not totally clarified nor understood by this worker. (Id.) Nonetheless, Badach felt Iarussi's desire to care for Brittany was "certainly authentic." (Id.) She also felt that Iarussi had managed very well as a single parent to Abby, who was well-behaved, listened well, and showed her mother love and respect. (Id.)

Badach summed up her evaluation and recommendation by noting that Iarussi had "numerous strengths and abilities," to wit:

She is caring, compassionate, and devoted to her own child and to the desire to care for Brittany full-time. She is organized and structured in her environment and has a keen sense of responsibility as a homemaker and parent. In addition, Lisa has a strong support network of family and friends who have offered to help her in a variety of ways, if necessary.

Lisa and Brittany have known each other since Brittany was very young.

Lisa has been her primary caregiver many times, for many days at a time. ... (Defs.' Ex. 4 [76] at p. 11.) Badach thought it would be beneficial for the family to have continuous support services in place while Iarussi transitioned from a part-time to a full-time caregiver and parent. (Id.) "In addition," Badach noted, "as Lisa continues to explore her own personal issues with a therapist, it would be helpful to allow her an opportunity to work collectively with a professional in parenting a child with a known history of being a victim of abuse herself. It is hoped that Ms. Iarussi will not 'take on' the issues of Brittany upon herself as she works through her own history of abuse, as well." (Id.)

While Badach's study was in progress, OCY took steps to facilitate Brittany's placement with Iarussi on an interim basis. On June 9, 2000, Gallagher and Vallone filed a request with the juvenile court for permission to transfer Brittany into Iarussi's home pending the next permanency hearing, which was scheduled for the following November. In support of this request, Gallagher and Vallone stated that:

Brittany ... has had several weekend visits at the home of her prospective caretaker, Lisa Iarussi, and the visits have been uneventful and positive for Brittany. The homestudy process has been completed and this placement is recommended. The homestudy report is not yet prepared in written form, but according to Ann Badach of Family Services, the Iarussi home will be approved. Brittany completes the school year on June 9, 2000, and the child and prospective caretaker desire immediate placement.

(Pls.' Appendix 1 [116-1] at p. 16 (emphasis added).) Copies of OCY's request were sent to the attorney representing Brittany's parents, as well as to Christine Jewell, Esq., Brittany's appointed guardian ad litem, and Sheila Baldwin, her Court Appointed Special Advocate (CASA). (Id.)

On June 13, 2000, Baldwin sent a letter to the juvenile court concurring with the request to place Brittany with Iarussi. Baldwin's only stated concern at that point was that Brittany continue her counseling through the Sexual Abuse Initiative and that Iarussi be included in the counseling so as to address safety concerns for Brittany. Baldwin noted in her letter that, "[a]lthough there had been some concern about Ms. Iarussi complying with this order, at this point in time she has agreed to do so." (Defs.' Ex. 6 [78] at p. 1.)

The juvenile court approved the placement request on June 15, 2000. (Pls.' Ex. Vol. 1 [116-1] at p. 15.) At this point, Brittany left her foster care home and began living with Iarussi on a full-time basis.

Following her placement with Iarussi, Brittany continued to receive various "Wraparound" services coordinated through the Sexual Abuse Initiative ("SAI") of Family Services of Northwestern Pennsylvania. This Behavioral Health Rehabilitative Services Team -- informally referred to as the "Wraparound Team" -- included Danielle Szklenski, Supervisor of the SAI, who also served as the team facilitator. Additional members of Brittany's team included, among others, Defendant Gallagher, Ann Badach, Sheila Baldwin, representatives from the Mental Retardation Base Services Unit, a child specialist from the Mercy Center, Therapeutic Staff Support (TSS) workers providing behavioral support services to Brittany and, generally, any other case worker, therapist, psychologist, or other service provider working with Brittany and/or her biological family. (See Defs.' Ex. 17 [89] at pp. 2-8; Defs.' Ex. 18 [90] at pp. 1-5.) The purpose of the team was to provide a multi-disciplinary, collaborative approach to the various coordinated interventions that Brittany and her family were receiving. (Defs.' Ex. 17 [89] at pp. 6-8.)

During the time period June 2000 through May of 2001, while Brittany was living with Iarussi but prior to her adoption, there were various discussions among the Wraparound Team members regarding Brittany's progress. (Defs.' Ex. 17 [89] at p. 12.) On some occasions, Brittany's biological mother, her maternal grandmother, and Iarussi were present, along with the team members. (Id. at pp. 12-14; Defs.' Ex. 18 [90] at pp. 1-5.) Reports from the team meetings suggest that a degree of conflict developed between Iarussi and Brittany's mother over matters of visitation and perceived criticisms by Iarussi concerning the choices and actions of Brittany's mother.

One such incident was noted at an August 30, 2000 meeting of the Wraparound Team. (See Defs.' Ex. 18 [90].) As of that date, Brittany was seeing her mother and siblings twice a month through prearranged visits. (Id. at p. 1.) She had just started the school year and was reportedly doing well. (Id. at p. 2.) However, some two weeks earlier a disagreement had arisen when, at the start of a prescheduled visit between Brittany and her mother, Iarussi had requested that Brittany return early in order to attend a family picnic. That day happened to be the mother's birthday and, wanting Brittany to stay for her entire allotted visitation time, Brittany's mother refused the request. (Id. at pp. 1-2.) Gallagher and Szklenski agreed that the visits should occur on the pre-scheduled dates and times unless an agreement to do otherwise were reached in advance. There was also a request by Brittany's mother to have more regular phone contact with Brittany, which she claimed was not occurring. (Id. at p. 2.) Other discussions centered around Brittany's mother's finances, her improved interaction with her children, and her goal of obtaining independent, safe housing. (Id. at p. 4.)

On September 20, 2000, the Wraparound Team met again, this time with both Iarussi and Brittany's mother present. It was noted that Brittany was enrolled in the sixth grade life skills classes at her new school and she had not engaged in any sexualized behaviors over the past several weeks. The team identified numerous "strengths" in Brittany -- namely, that she was cute and friendly, she liked spending time with her mother and siblings, she interacted well with other children, she was loving and caring and enjoyed school, she loved Iarussi's daughter Abby, she had participated in various summer outings and activities, and she enjoyed math and gym and riding her bike. The team also noted that "[c]urrently, a great deal of tension ha[d] been mounting" between Brittany's mother and Iarussi, and it centered around Iarussi limiting contact between Brittany and her mother. (Defs.' Ex. 20 [92] at p. 1.)

One week later, the Team reassembled and generated a progress update. Brittany's mother and Iarussi were both present, once again, for the team meeting. At this September 27, 2000 meeting, Iarussi apologized for being critical of Brittany's mother and indicated a willingness to allow Brittany contact with her mother outside of her own home. Brittany's mother was slow to accept the apology and expressed a distrust of Iarussi and a continued interest in being reunited with Brittany. Defendant Gallagher cautioned, however, based on discussions with Defendant Vallone, that if reunification were to occur and then subsequently fail, Brittany's mother could end up losing all four children. Both Iarussi and Brittany's mother agreed to the team's recommendation to resolve their conflict by attending counseling with an independent psychologist. (Defs.' Ex. 21 [93].)

On October 16, 2000, Danielle Szklenski submitted a summary of Brittany's status to the juvenile court. (See Defs.' Ex. 19 [91].) Szklenski noted that Brittany was residing in a well-kept mobile home with Iarussi and her daughter Abby and that Brittany was succeeding socially and academically at school. Brittany's diagnosis, reviewed as of September 20, 2000 by Martha Eichenlaub, a licensed psychologist, was ADHD, Sexual Abuse of a Child, and Mental Retardation. She had completed counseling at Rape Crisis of Erie County and was seeing her mother and four siblings twice monthly at the Mercy Center for Women.

In her summary report, Szklenski noted the "strengths" that the team had identified for Brittany at its September 20, 2000 meeting, adding also that Brittany "has two women ([her mother and Iarussi]) who both love her very much." (See Defs.' Ex. 19 [91] at p. 2.) Szklenski also discussed Brittany's various needs, including the need to define and make permanent a long-range plan regarding residency, the need for Iarussi to formalize a safety plan to prevent sexual touching of Abby by Brittany, and the need for Iarussi and Brittany's mother to resolve their conflicts and minimize hostility so as to ease the tension this was creating for Brittany. Szklenski noted that she had not yet explored Brittany's prior trauma, as Brittany seemed anxious about the uncertainty of her future and the focus thus far had been on stabilization. (Id.)

With regard to her current living situation, Szklenski reported, It seems that Brittany feels very connected to the Iarussi family. In fact, when asked to draw a picture of her family, she first drew Lisa and Abby, whom she has recently begun to refer to as "mom" and "sister," respectively. Brittany later added her biological siblings and grandparents to the picture and, finally, added her mother after I encouraged her to add anyone who was missing. It should be noted that Lisa [Iarussi] was present during this activity.

(See Defs.' Ex. 19 [91] at p. 3.)

Szklenski also reported on the tension that had built between Brittany's mother and Iarussi relative to Brittany's custodial arrangement:

It seems that Brittany is experiencing loyalty conflicts related to the hostility and conflict that has existed between Lisa Iarussi and [her biological mother]. On two occasions reported to this worker, Brittany looked to Lisa for "permission" to greet her mother and has been reluctant to interact with her mother in Lisa's presence. However, when this worker has observed Brittany during her family visits at the Mercy Center, Brittany has shown no hesitation in interacting with [her mother] or [her siblings] and, in fact, expresses disappointment when the visits come to an end and she has to return to Ms. Iarussi's.

The hostility between [Brittany's mother] and Lisa seems to have historical roots. [Mother's] friend from high school, Lisa reports anger with [Brittany's mother] over the bad parenting choices she's made and their impact on her children. Lisa reports attempting to influence [Brittany's mother] to make better choices. Further, Lisa reports feeling used by [Brittany's mother] to care for Brittany off and on since she was an infant, with no monetary support. Initially, Lisa reported to this worker that she wanted to adopt Brittany and, after it was final, she would not permit Brittany to have contact with [her mother]. [Brittany's mother] reported feeling betrayed by her friend, Lisa, as Lisa continued to loudly criticize [her] and her past mistakes to workers involved. She felt that Lisa was not recognizing the positive changes she has made in her life. [Brittany's mother] reported that Lisa offered to care for Brittany many times in the past and that Brittany was not constantly forced on her. [Brittany's mother] feared that Lisa was taking her daughter from her as Lisa attempted to shorten Brittany's visits with [her biological family]. [Brittany's mother] began to worry that if adopted by Lisa, Brittany would be out of her life forever. This fear has prompted [Brittany's mother] to be even more determined to have Brittany returned to her care.

The Child & Family Team arranged for private counseling for Lisa and [Brittany's mother], by [a] licensed psychologist, to address their conflict and to help them create a plan for Brittany's care to be presented to the team and to the court. Through these sessions and through their efforts to mend the relationship, the two women are now interacting with each other more positively. Lisa reports agreeing to continue Brittany's visits with her biological family even if she adopts her. [Brittany's mother] seems pleased with this but is reluctant to trust in this completely. She continues to want Brittany returned to her care, despite the promise of continued contact. [Brittany's mother] reports it has always been her goal to have all of her children returned to her. ...

(Defs.' Ex. 19 [91] at pp. 3-4.) Brittany's mother appeared to be more comfortable with the custodial arrangement of one of her other children, who had been placed with a family member. Because that placement involved a family relation, Brittany's mother felt she had greater access to her child and trusted that she would be portrayed more favorably to her children. (Id. at p. 4.)

Although Szklenski did not feel it was her role to make a placement recommendation, she enumerated several reasons for the court to consider reunifying Brittany with her mother, as well as several reasons for it to consider involuntary termination of parental rights and adoption by Iarussi. With respect to reunification, Szklenski noted:

1. [Brittany's mother] has complied with her service plan, and attended all scheduled sessions.

2. While continued work is needed and is occurring, [Mother] has made tremendous gains in parenting three children, with TSS support, while living at the Mercy Center for Women.

3. [Mother] has saved over $1,000, at this writing, to be used toward establishing independent living.

4. [Mother] is moving toward securing an independent residence with a target date of January 2001.

5. [Mother] is open to continued involvement with case management, Wraparound services and TSS support to assist, as needed, outside of the Mercy Center.

6. [Mother] has paid down a significant portion of her previous debt and if she continues as scheduled, will have no debt at the time she leaves the Mercy Center in January 2001.

7. [Mother] has not been afforded the opportunity to attempt to parent four 17 children at her present skill level.

8. [Mother] wants Brittany returned to her care.

9. The Mercy Center is willing to have Brittany move in, if the court approves.

10. [Mother] has improved her assertiveness skills, which was a risk factor contributing to her children's previous abuse.

11. Brittany will have the opportunity to be raised by her mother and to strengthen her relationship with her mother.

12. Brittany will have the opportunity to grow up with three of her biological siblings.

13. Brittany is a cooperative child who is not difficult to manage.

14. [Mother] has agreed to allow Brittany to continue contact with Ms[.] Iarussi, at Ms. Iarussi's request. It should be noted that Ms. Iarussi has stated that she wants no contact with Brittany if she cannot adopt her, as it would be difficult for her (Ms. Iarussi) emotionally.

(See Defs.' Ex. 19 [91] at p. 4.)

Szklenski offered the following reasons for the court to consider the involuntary termination of parental rights and adoption by Iarussi:

1. [Brittany's mother] may not be able to care for four children safely and successfully, once outside of the supportive structure of the Mercy Center.

2. Due to Brittany's easy and compliant nature, her needs may be overlooked by [Mother] due to the challenge and demand of caring for three other children[,] two of whom ... have behavior problems.

3. Brittany... is safe and secure in the home of Ms. Iarussi and her daughter, Abby.

4. Ms. Iarussi and Brittany appear to share a strong emotional connection that originated when Brittany was an infant.

5. Brittany has reported a desire to continue to live with Ms. Iarussi and her daughter.

6. Ms. Iarussi has expressed a willingness to continue counseling services for Brittany, if she adopts her.

7. Ms. Iarussi has agreed to allow Brittany to visit with her biological family, if she adopts her.

(See Defs.' Ex. 19 [91] at p. 5.)

On November 3, 2000, Brittany was referred to Donna Ziegler, Ph.D., for a psychological consultation due to questions concerning what disposition and/or placement options would best meet her emotional needs -- specifically, whether Brittany should remain in her placement with Lisa Iarussi or be returned to the care of her mother. (Def.'s Ex. 25 [97] at pp. 2-3; Ex. 26 [98] at p. 1.) When questioned as to why she preferred to remain with Iarussi, Brittany replied that "she takes care of me" and that "she loves me." (Defs.' Ex. 25 [97] at pp. 10-12; Ex. 26 [98] at p. 2.) When asked why she would not prefer to return to her mother, Brittany responded that "she got to take care of those two" and "she needs to get out of the Mercy. She's trying as hard as she can to get on her feet." (Defs.' Ex. 26 [98] at p. 2.) During the interview Brittany spontaneously mentioned that "she [Iarussi] keep us safe. She take care of us and feed us. She make me take a shower every night and Abby, 'cause Lisa keep us safe to not touch anybody. Keep our hands to our self." (Ex. 26 [98] at p. 3.) When queried about what she meant by "safe," Brittany responded with "no bad stuff." (Id.) When asked whether any "bad stuff" had ever happened at her mother's house, Brittany nodded affirmatively but then quickly changed the subject. (Id.) Dr. Ziegler considered it significant that Brittany had been taught to keep her hands to herself and that Brittany viewed this as part of Iarussi "taking care of" her; to Dr. Ziegler, these comments were reflective of Brittany's treatment for past victimization "and Lisa keeping some tabs on that." (Ex. 25 [97] at pp. 15-16.) Brittany demonstrated feelings of closeness to Abby by drawing a picture of Abby alongside herself when asked to create a self-portrait. (Id. at p. 18.)

In eliciting responses from Brittany, Dr. Ziegler felt that Brittany's comments were authentic and not the result of coaching. (Defs.' Ex. 25 [97] at p. 12.) She noted that Brittany seemed to be experiencing anxiety about at a court hearing that was scheduled for later that day, especially the possibility of seeing her father there. (Defs.' Ex. 25 [97] at p. 14; Ex. 26 [98] at p. 3.) When asked about what the judge might say at the hearing, Brittany responded, "[I]f my mom get me back or if Lisa get me. I don't want to go back to my mom. I'll probably watch [my younger siblings]. I'm only eleven." (Ex. 26 [98] at p. 3.) Dr. Ziegler interpreted this as "an apparent reference to the expectation that she would be responsible in some ways for younger siblings, and her awareness that this expectation was excessive for her at her age." (Id.) Although Brittany expressed sadness at the idea of losing contact with her biological siblings in the event she were adopted by Iarussi, she never expressed a desire to live with her mother and, in fact, Dr. Ziegler concluded that the opposite was true. (Pls.' Ex. Vol. 1 [116-1] at p. 26.)

Psychological testing revealed that Brittany demonstrated clinically significant levels of depression, negative mood, interpersonal problems, feelings of ineffectiveness and anhedonia. (Defs.' Ex. 26 [98] at pp. 3-4.) In Dr. Ziegler's view, the depression was likely a result of Brittany's psychosocial stressors, including apprehension about the potential outcome of the pending court hearing, the fact that she might encounter her father there, the fact that she might be returned to her mother, and concern that she might be separated from Abby and Iarussi. (Id. at p. 4; Ex. 25 [97] at p. 27.)

In spite of this, however, Dr. Ziegler felt that Brittany was well adjusted considering her significant history of sexual abuse and chronic neglect. (Defs.' Ex. 26 [98] at p. 4.) On the whole, she presented a solid, positive self-esteem and no greater preoccupation with sexual issues than would be expected in light of her history. She was able to verbalize her preferences and support them with very relevant needs and perceptions based upon her own security and safety issues. It was felt that Brittany "clearly associate[d] a return to her mother's care with high expectations that are not appropriate for her, i.e., for care and supervision of her younger siblings." (Defs.' Ex. 26 [98] at p. 4; see also Ex. 25 [97] at pp. 21-24.)

Dr. Ziegler concluded by making the following recommendations:

1. Continued placement in the current foster care/ adoptive kinship home is highly recommended. I believe that Brittany has adequate insight into her own needs and motives at this point in time and that she also recognizes her safety and security needs are currently being met in this placement. Additionally, she clearly stated that she does not want to return to the care of her mother.

I believe Brittany's level of adjustment in this home and in school are further indicators of the appropriateness of this placement.

2. A psychiatric evaluation is recommended to consider anti-depressant medication.

3. It is recommended that Brittany participate in a regimen of art therapy to assist in working through the psychological issues surrounding the history of abuse, the reason for her out-of-home placement, and the likely termination of material rights.

4. It is highly recommended that dispositional decision include the possibility of continuing supervised visits with the biological siblings.

(Defs.' Ex. 26 [98] at pp. 4-5.) In making these recommendations, Dr. Ziegler was never asked to interview Iarussi or review any her personal records. Dr. Ziegler viewed her role not as one where she was making an assessment of Iarussi's fitness to parent; rather she viewed her role as being an independent evaluator and advocate for Brittany. (Pls.' Ex. Vol. 1 [116-1] at pp. 34-35.)

On November 3, 2000, the same day that Brittany was evaluated by Dr. Ziegler, the juvenile court held a hearing to consider whether the parental rights of Brittany's biological parents should be involuntarily terminated and/or whether Brittany should continue permanently in the care of Iarussi. At the hearing, OCY took the position that it was in Brittany's best interest to terminate parent rights and to proceed toward adoption by Iarussi. However, in a report submitted by OCY at the November 3 hearing, the Agency candidly advised the court that members of the Wraparound Team disagreed with this plan. In relevant part, this report, as read into the present record, stated as follows:

Although the Agency believes that it is in the best interest of Brittany to file a petition to terminate parental rights and to proceed with the adoption of Brittany by Ms. Iarussi, pending administrative and legal review and approval, the Agency is also obligated to inform the court of Ms. Kris Petulla and the members of the wrap team's disagreement with this permanency plan.

Members of the wrap team believe mother should be given the opportunity to parent Brittany based on her progress at the Mercy Center. The progress is well documented in the reports submitted by Danielle Szklenski, supervisor of the Sexual Abuse Initiative. The Agency acknowledges the current level of progress made by mother and the fact that she cares deeply for Brittany. The Agency is deeply concerned with mother's success. (Defs.' Ex. 9 [81] at p. 31-32.) OCY's concerns about reunifying Brittany with her mother appear to have stemmed from the fact that Brittany's mother was mentally challenged and had a history of making bad decisions. (Id. at 42.)

Those present at hearing and, thus, privy to the Wraparound Team's objections, included not only the juvenile court judge but also Brittany's CASA (Baldwin), her guardian ad litem, her natural parents, and their attorney. (Defs.' Ex. 9 [81] at pp. 30-34.) In fact, an objection was raised at the hearing by counsel for Brittany's mother concerning Brittany's continued placement with Iarussi, as Brittany's mother still wanted to be reunified with her daughter. There was also talk during the November 3, 2000 hearing concerning whether another family that had already adopted one or two of Brittany's siblings might want to take Brittany in. (Defs.' Ex. 9 [81] at p. 38.) Although the details of that discussion are not part of this record, it appears that neither OCY nor Baldwin considered this to be in Brittany's best ...

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