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Elizabeth Mort and Alex Rodriguez v. Lawrence County Children and Youth Services

August 31, 2011


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

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Elizabeth Mort ("Mort") and Alex Rodriguez ("Rodriguez") (collectively "plaintiffs") commenced this civil rights action pursuant to 42 U.S.C. ' 1983 seeking redress for the alleged unlawful removal of their newborn daughter ("Baby Rodriguez"). Plaintiffs aver that defendants Lawrence County ("the County"), Lawrence County Children and Youth Services ("LCCYS"), and LCCYS caseworker Chrissy Montague ("Montague") (collectively "the County defendants") violated their substantive due process rights under the United States and Pennsylvania constitutions by infringing on the fundamental liberty interest of parents to the custody, care and control of their children. Amended Complaint at & 95. Plaintiffs advance a claim against the County, LCCYS and Jameson Health System ("Jameson") for conspiracy to violate their Fourteenth Amendment rights. Id. at ¶ 101-107. They also aver state law claims against Jameson. Presently before the court are defendants' motions to dismiss on the bases that the complaint fails to state a claim upon which relief can be granted and absolute, statutory and/or qualified immunity. For the reasons set forth below, the County defendants' motion will be denied and Jameson's motion will be granted in part and denied in part.

It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) A[t]he applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.@ Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Under the Supreme Court‟s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007), dismissal of a complaint pursuant to Rule 12(b)(6) is proper only where the averments of the complaint plausibly fail to raise directly or inferentially the material elements necessary to obtain relief under a viable legal theory of recovery. Id. at 544. In other words, the allegations of the complaint must be grounded in enough of a factual basis to move the claim from the realm of mere possibility to one that shows entitlement by presenting Aa claim to relief that is plausible on its face.@ Ashcroft v. Iqbal, B U.S. B, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).

AA claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.@ Id. In contrast, pleading facts that only offer A>labels or conclusions= or >a formulaic recitation of the elements of a cause of action will not do,=@ nor will advancing only factual allegations that are merely consistent with a defendant=s liability. Id. Similarly, tendering only Anaked assertions@ that are devoid of Afurther factual enhancement@ falls short of presenting sufficient factual content to permit an inference that what has been presented is more than a mere possibility of misconduct. Id. at 1949-50; see also Twombly, 550 U.S. at 563 n. 8 (A complaint states a claim where its factual averments sufficiently raise a A>reasonably founded hope that the [discovery] process will reveal relevant evidence= to support the claim.@) (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347 (2005) & Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975)).

This is not to be understood as imposing a probability standard at the pleading stage. Iqbal, 129 S. Ct. at 1949 (AThe plausibility standard is not akin to a >probability requirement,= but it asks for more than a sheer possibility that a defendant has acted unlawfully.@); Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (same). Instead, A[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: >stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest the required element ... [and provides] enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.=@ Phillips, 515 F.3d at 235; see also Wilkerson v. New Media Technology Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) (AThe complaint must state >enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.=@) (quoting Phillips, 515 F.3d at 235) (citations omitted). AOnce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.@ Twombly, 550 U.S. at 563.

Mort gave birth to a healthy baby girl on April 27, 2010, at Jameson Hospital‟s North Campus. Am. Compl. at ¶ 31. During her pregnancy Mort had received "necessary and appropriate medical care" and did not use any illegal drugs. Id. at ¶¶ 32-33.

On April 26, 2010, at approximately 3:00 p.m., Mort consumed an "everything" bagel from Dunkin Donuts, which, among other things, contained poppy seeds. Id. at ¶ 34. Two hours later she was admitted to Jameson‟s North Campus in labor. Shortly after being admitted she voluntarily submitted a urine sample in accordance with Jameson‟s policy. Id. at ¶¶ 35-36.

The initial result of Mort's urine drug screen ("UDS") was positive for opiates with a concentration of opiate metabolites at a level of 501 nanograms/mL, which is above the 300 nanograms/mL "cut-off" established by Jameson's policy. Id. at ¶¶ 38, 42. A test result of 501 nanograms/mL of opiate metabolites is 1499 nanograms/mL below the 2000 nanograms/mL cutoff level used in federal workplace testing to avoid "false positives" caused by consuming common foods and medicines. Id. at 22. At this point, Jameson did not notify Mort that her UDS was positive for opiates. Jameson did, however, notify Mort‟s obstetrician, Nicole Carlson, M.D. ("Dr. Carlson"). Id. at ¶¶ 39-40.

Dr. Carlson did not inform Mort of the positive test result because (1) throughout her pregnancy Mort‟s urine tests were negative for the presence of drugs, (2) she did not believe Mort was a drug user and (3) she did not want to "frighten" Mort during the labor and delivery process. Id. at ¶ 41. In addition, Dr. Carlson was well aware from her prior experience that "many of the initial UDS tests come back as "false positives.‟" Id. at ¶40.

Under Jameson‟s policy a second test is conducted on the same urine sample when the initial UDS is positive. Id. at 42. Mort's confirmatory test also was positive for the presence of opiate metabolites at a level of 501 nanograms/mL. Id. Neither Mort nor Dr. Carlson were made aware that the confirmatory test yielded a positive result.

Jameson‟s policy also requires the testing of the baby. Baby Rodriguez‟s drug test was negative. Id. at ¶ 48. Baby Rodriguez did not exhibit any signs or symptoms suggesting she had been exposed to drugs while in the womb. Id. at 49.

Jameson did not ask Mort if she had eaten any foods that could affect the test results, nor did anyone at Jameson advise her that the ingestion of certain foods, like poppy seeds, could impact the results of her UDS. Id. at ¶ 37. No one from Jameson‟s social services department visited Mort and/or Rodriguez, questioned them about drug use or inquired about their ability to care for their child. Id. at ¶¶ 51-52.

Mort and Baby Rodriguez were discharged on April 29, 2010. Plaintiffs were not informed of Mort's positive UDS. They returned to their home with Baby Rodriguez. Id. at ¶¶ 51-53.

Pursuant to its policy, Jameson notified LCCYS of the positive UDS results. Id. at ¶¶ 45, 102. Jameson did not inform LCCYS that (1) throughout Mort's prenatal care there was no indication that she had used drugs; (2) Dr. Carlson had no basis to believe and did not suspect that Mort had used drugs during her pregnancy; (3) the positive test result was based on an extremely low level that was consistent with and could have been caused by the consumption of certain foods, such as poppy seeds; (4) Baby Rodriguez had tested negative and did not exhibit any symptoms that would suggest prenatal exposure to drugs; and (5) Jameson's treating staff had no reason beyond the positive test results to believe that Mort had used drugs at any time or that Baby Rodriguez was or had been a victim of drug and/or child abuse. Id. at ¶¶ 37-38, 41, 49-50, 58. LCCYS and/or Montague did not ask about any of these matters/areas. Id. at ¶¶ 52, 55-58. Nor did Montague or anyone else from LCCYS ask about the levels of the opiates detected in Mort's UDS. Id. at ¶ 46

On April 30, 2010, Montague orally petitioned the Juvenile Division of the Lawrence County Court of Common Pleas for an ex parte order permitting LCCYS to take Baby Rodriguez into emergency protective custody. The petition was based solely on Jameson‟s report of Mort's positive UDS and alleged that based on the positive test result Baby Rodriguez was without proper parental care and needed to be taken out of the home due to exposure to drugs. Id. at ¶¶ 54-55. Based upon Montague‟s allegations, the court immediately issued the ex parte order.

Thereafter, two LCCYS caseworkers and two Neshannock Township Police Department officers arrived at Mort and Rodriguez‟s residence at approximately 3:00 p.m. Id. at ¶¶ 60-61.

Plaintiffs were presented with the order authorizing the removal of Baby Rodriguez from their custody and her placement into foster care. Upon inquiry, they learned of Mort's positive UDS. Id. at ¶¶ 62-63. The caseworkers and police officers were at the home for fifteen minutes. They did not, however, inspect the home or interview plaintiffs. Id. at ¶ 66. The caseworkers took Baby Rodriguez into protective custody and refused to tell plaintiffs where they were taking her. Id. at ¶ 67.

Mort‟s father, Richard Mort ("Mr. Mort"), left work and returned to plaintiffs' residence, where he also lived, upon learning that LCCYS had taken his granddaughter into custody. Id. at ¶ 69. He contacted LCCYS and was told to contact an attorney, which he did. Id. at ¶ 70. After being informed about the positive UDS and becoming more informed about potential causes and his daughter's activities on the day she went into labor, Mr. Mort suspected that the positive UDS was the result of her ingesting the poppy seeds on the "everything bagel." Id. at ¶ 72. Mort then contacted Dr. Carlson and asked her to order another UDS. Two hours after the removal of Baby Rodriguez Mort went to Jameson North Campus and provided a urine sample. Id. at ¶¶ 73-74.

An informal hearing was scheduled at 1:30 p.m. on May 3, 2010, to determine whether Baby Rodriguez‟s placement in shelter care was necessary. Plaintiffs and Mr. Mort as well as their appointed lawyers arrived at the scheduled time. Id. at ¶¶ 75-76. Rodriguez asked his lawyer if he could take custody of Baby Rodriguez. Rodriguez was told that he would need to live apart from Mort and undergo drug testing in order to obtain custody. Id. at ¶ 77.

Mort and Mr. Mort met with Mort's court-appointed lawyer. They informed him of the poppy seeds Mort had ingested two hours before going into labor and the ability of poppy seeds to produce positive test results for opiates. Id. at ¶ 78. The lawyer then arranged for them to meet with Montague. Mort and Mr. Mort then informed Montague about the low cut-off levels used by Jameson and their belief that the initial UDS was a false positive due to eating poppy seeds. Montague "appeared to believe" that it was a false positive and admitted that LCCYS "had experienced problems with Jameson in the past and that LCCYS had made a mistake by removing Baby Rodriguez from Plaintiff‟s custody." Id. at ¶ 80. At that point plaintiffs believed that LCCYS would not contest the return of Baby Rodriguez at the informal hearing and that she would be returned to them later that day. Id. at ¶ 81. For reasons unknown to plaintiffs Juvenile Court Master Susan Papa refused to hold the informal hearing that day and rescheduled it for May 6, 2010. Id. at ¶ 82.

On May 4, 2010, LCCYS permitted plaintiffs to visit Baby Rodriguez in LCCYS's office. This was the first time they were able to see Baby Rodriguez since she had been taken four days earlier. Id. at ¶ 84. During the visit they learned that the UDS Mort submitted on April 30, 2010, was negative and they informed Montague of the result. Although Montague again appeared to believe plaintiffs‟ assertion that the original positive result was due to the poppy-seed bagel and acknowledged the subsequent negative test result, LCCYS did not permit plaintiffs to take Baby Rodriguez home. Id. at ¶ 85.

On May 5, 2010, LCCYS informed plaintiffs that it intended to file a motion to dismiss the dependency petition and that Baby Rodriguez would be returned to their custody. Id. at ¶ 86. Montague brought Baby Rodriguez to their home at approximately 1:00 p.m. Id.

On May 6, 2010, LCCYS filed the motion to dismiss, stating therein that "[a]fter further investigation, there is no evidence to support illegal drug use by the natural mother, Elizabeth Mort." Id. at ¶ 87. On May 10, 2010, the court granted the motion. Id. at ¶ 88.

Plaintiffs assert four claims against defendants in their Amended Complaint. At Count I, plaintiffs allege that the County, LCCYS, and Montague violated their parental rights to the care, custody, and control of their child by taking action pursuant to LCCYS's custom, policy, or practice under which they "seek to remove newborn children from their parents based solely upon a report from a hospital or other medical professional of a positive prenatal drug test of the child's mother, and without any further investigation into family circumstances whatsoever." Id. at ¶ 95.

At Count II, plaintiffs allege that Jameson, LCCYS, and the County entered into a "combination, agreement, or understanding to violate Plaintiffs' constitutional rights under the Fourteenth Amendment by carrying out, through Jameson, a policy of testing all obstetrical parents, which resulted in the removal of Plaintiffs' child from their custody without ...

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