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Reginald Dennis v. Allan R. Dejong

September 30, 2011

REGINALD DENNIS, RENEE DENNIS AND B.D., A MINOR, PLAINTIFFS
v.
ALLAN R. DEJONG, M.D.; NEMOURS FOUNDATION; MARY GERMOND; META WERTZ; BETH PRODOEHL; PATRICIA MCGETTIGAN; GINA GIANCRISTIFORO; EDWARD SPEEDLING; CINDY W. CHRISTIAN, M.D.; PENNSYLVANIA STATE UNIVERSITY HERSHEY MEDICAL SCHOOL; DANIELL B. BOAL, M.D.; KATHLEEN D. EGGLI, M.D.; G. MICHAEL GREEN; MICHAEL R. GALANTINO; DR. DOE AND COUNTY OF DELAWARE, DEFENDANTS



The opinion of the court was delivered by: James Knoll Gardner, United States District Judge

OPINION

This matter is before the court on five defense motions to dismiss plaintiffs' Complaint.

COMPLAINT

On November 19, 2010 plaintiffs Reginald Dennis and Renee Dennis, and their son, B.D., a minor, *fn1 filed a nineteen-count civil Complaint in this matter. The Complaint alleges that numerous defendants violated their civil rights pursuant to 42 U.S.C. §§ 1981, 1983 and 1985. The Complaint also alleges negligence, malicious prosecution, civil conspiracy, and intentional infliction of emotional distress pursuant to Pennsylvania state law.

The Complaint arises from the temporary removal of B.D. from his parents' custody. Specifically, paragraph 5 of the Complaint alleges, in part:

On December 9, 2009 B.D. was removed from his parents by an ex parte order obtained when Delaware County Children and Youth Services employees made reckless misrepresentations to the Delaware County Court without any opportunity for Reggie and Renee to be heard. Thereafter, B.D. was placed in foster care and separated from his mother, Renee, for nine months and was separated from his father, Reggie, for over one year in violation of his constitutional rights.

Complaint, paragraph 5.

Plaintiffs request an award against defendants of compensatory and punitive damages and injunctive relief.

MOTIONS TO DISMISS

The five motions filed by defendants, and the responses of plaintiffs, which are before the court, are as follows.

On January 7, 2011, defendants Mary Germond, Meta Wertz, Beth Prodoehl, *fn2 Patricia McGettigan, Gina Giancristiforo and the County of Delaware filed a motion to dismiss. *fn3

Plaintiffs responded on January 20, 2011. *fn4

On January 13, 2011, defendants G. Michael Green and Michael R. Galantino filed a motion to dismiss. *fn5 Plaintiffs responded on January 27, 2011. *fn6

On January 18, 2011, defendants Pennsylvania State University Hershey Medical School, Danielle K. Boal, M.D., and Kathleen D. Eggli, M.D. filed a motion to dismiss. *fn7 Plaintiffs responded on February 7, 2011. *fn8

On January 19, 2011, defendants Allan R. DeJong, M.D., Nemours Foundation and Edward Speedling filed a motion to dismiss. *fn9 Plaintiffs responded on February 1, 2011. *fn10

Finally, on January 28, 2011, defendant Cindy W. Christian, M.D. filed a motion to dismiss. *fn11 Plaintiffs responded on February 16, 2011. *fn12

Oral argument on defendants' motions was held before me on June 17, 2011. At the conclusion of oral argument, the matter was taken under advisement. Hence this Opinion.

SUMMARY OF DECISION

For the reasons expressed below, the motion to dismiss plaintiffs' Complaint filed by defendants Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan, Gina Giancristiforo and the County of Delaware is granted in part and denied in part. The four motions to dismiss plaintiffs' Complaint filed by the remaining defendants are each granted. *fn13

As a result, plaintiffs' claims are dismissed with prejudice regarding the following counts of the Complaint:

Count I: plaintiffs' Fourteenth Amendment substantive and procedural due process claims against defendant Delaware County for deputizing an employee of Delaware County Children and Youth Services to act as a deputy clerk of court for all dependency matters in place of the county's Office of Judicial Support;

Count II: plaintiffs' Fourteenth Amendment substantive and procedural due process claims against CYS employees, defendants Wertz, McGettigan, and Giancristiforo, for an alleged delay in filing an ex parte memorandum with the court concerning termination of plaintiff parents' parental rights;

Count IV: plaintiffs' Fourteenth Amendment procedural due process claim against defendant Delaware County for the alleged policy of delaying the scheduling of dependency hearings;

Count VI: plaintiffs' Fourteenth Amendment substantive due process claim against defendant Delaware County for CYS's reliance on defendant Dr. DeJong's investigations, reports and testimony;

Count VII: plaintiffs' Fourteenth Amendment substantive due process claim against defendant Dr. DeJong for multiple misrepresentations of medical findings to support false accusations of child abuse and related actions;

Count VIII: plaintiffs' claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985 against defendants Dr. DeJong, Wertz, McGettigan and Speedling for conspiring to deprive plaintiffs of their equal protection and due process rights based on gender bias and racial animus in their entirety;

Count IX: plaintiffs' Fourteenth Amendment procedural due process claim against defendants Dr. DeJong, Germond, Wertz, McGettigan, Giancristiforo, and Delaware County for adopting the medical presumption that a subdural hematoma ("SDH") is caused by abuse as a legal presumption in dependency and criminal cases;

Count X: plaintiffs' Fourteenth Amendment substantive and procedural due process claims against defendant Delaware County for failing to properly train CYS workers, supervisors and administrators about dependency proceedings;

Count XI: plaintiffs' claims pursuant to 42 U.S.C. §§ 1981 and 1985 against defendants Dr. DeJong, Dr. Christian, Dr. Boal and Deputy District Attorney Galantino for conspiring to misrepresent medical evidence concerning the age of B.D.'s subdural hematoma to deprive Mr. Dennis of his equal protection and due process rights;

Count XV: plaintiffs' Pennsylvania state-law negligence claim against defendant Dr. Doe in its entirety; and Count XIX: plaintiffs' Pennsylvania state-law claim against defendant Dr. DeJong for intentional infliction of emotional distress.

Plaintiffs' claims are dismissed without prejudice for plaintiffs to file a more specific amended complaint regarding their claims in the following counts of the Complaint:

Count I: plaintiffs' Fourth and Fifth Amendments claims against defendant County of Delaware ("Delaware County") in their entirety;

Count II: plaintiffs' Fourteenth Amendment claims regarding the representations in the ex parte memorandum made by defendants Patricia McGettigan, Meta Wertz, and Gina Giancristiforo, and plaintiffs' Fourth and Fifth Amendments claims against those defendants in their entirety ;

Count IV: plaintiffs' Fourteenth Amendment substantive due process claim against defendants McGettigan and Delaware County, and Fourth and Fifth Amendments claims against those defendants in their entirety;

Count V: plaintiffs' Fourth and Fifth Amendments claims against Delaware County in their entirety;

Count VI: plaintiffs' Fourteenth Amendment substantive due process claim against defendant Delaware County District Attorney G. Michael Green ("District Attorney Green") for District Attorney Green's reliance on defendant Allen R. DeJong, M.D.'s ("Dr. DeJong") investigations, reports and testimony;

Count IX: plaintiffs' Fourteenth Amendment procedural due process claim against District Attorney Green and Delaware County Deputy District Attorney Michael R. Galantino ("Deputy District Attorney Galantino") for adopting the medical presumption that a subdural hematoma ("SDH") is caused by abuse as a legal presumption in criminal cases;

Count X: plaintiffs' Fourteenth Amendment substantive and procedural due process claims against defendants Mary Germond, Wertz, McGettigan, and Giancristiforo for failing to properly train Delaware County Children and Youth Services ("CYS") workers, supervisors and administrators about dependency proceedings, and plaintiffs' Fourth and Fifth Amendments claims against defendants Germond, Wertz, McGettigan, Giancristiforo, and Delaware County in their entirety;

Count XI: plaintiffs' claims pursuant to 42 U.S.C. § 1983 against defendants Dr. DeJong, Cindy W. Christian, M.D. ("Dr. Christian), Danielle K. Boal, M.D. ("Dr. Boal"), and Deputy District Attorney Galantino for conspiring to misrepresent medical evidence concerning the age of B.D.'s subdural hematoma to deprive Mr. Dennis of his equal protection and due process rights in their entirety;

Count XII: plaintiffs' Fourth, Fifth, and Fourteenth Amendments claims against defendants District Attorney Green and Deputy District Attorney Galantino in their entirety;

Count XIII: plaintiffs' Fourth, Fifth, Sixth, and Fourteenth Amendment claims against defendants Kathleen D. Eggli, M.D. ("Dr. Eggli") and Nemours Foundation in their entirety;

Count XIV: plaintiffs' Pennsylvania state-law negligence claim against defendant Nemours Foundation in its entirety;

Count XVI: plaintiffs' Pennsylvania state-law claim against defendants Germond, Wertz, McGettigan, and Giancristiforo for malicious prosecution in its entirety;

Count XVII: plaintiffs' Pennsylvania state-law claim against defendant Deputy District Attorney Galantino for malicious prosecution in its entirety;

Count XVIII: plaintiffs' Pennsylvania state-law claim against defendants Dr. DeJong, Wertz, McGettigan, and Edward Speedling for civil conspiracy in its entirety; and Count XIX: plaintiffs' Pennsylvania state-law claim against defendants Wertz, McGettigan, and Speedling for intentional infliction of emotional distress.

In addition, defendants' motions to dismiss plaintiffs' claims for injunctive relief in Counts II-IV, VI, VII, IX, X, XII, and XIII are granted and those counts are dismissed from plaintiffs' Complaint with prejudice.

Defendants' motions to strike plaintiffs' Complaint is denied. Defendants' motion to dismiss on the ground of abstention for lack of subject matter jurisdiction is also denied.

Finally, defendants' motions to dismiss plaintiffs' Fourteenth Amendment claims against Delaware County in Counts II, III and V of plaintiffs' Complaint, against defendant Germond in Count III, and against defendant McGettigan in Count IV, are each denied.

As a result of the forgoing rulings, the following claims remain in plaintiffs' Complaint and may be included in the amended complaint authorized by the within Order and Opinion without change:

Count II: plaintiffs' Fourteenth Amendment substantive and procedural due process claims against defendant Delaware County;

Count III: plaintiffs' Fourteenth Amendment procedural due process claim against defendants Germond and Delaware County;

Count IV: plaintiffs' Fourteenth Amendment procedural due process claim against defendant McGettigan; and Count V: plaintiffs' Fourteenth Amendment substantive due process claim against defendant Delaware County.

JURISDICTION

Jurisdiction in this case is based on federal question jurisdiction pursuant to 28 U.S.C. § 1331. This court has supplemental jurisdiction over plaintiffs' pendent state-law claims. See 28 U.S.C. § 1367.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred within Delaware County, Pennsylvania, which is located within this judicial district.

PARTIES

Plaintiffs are Reginald Dennis and Renee Dennis, husband and wife, and their son, B.D., a minor. B.D. was an infant during the relevant time giving rise to their causes of action. *fn14

Plaintiffs name sixteen defendants. Fifteen of these defendants have joined one of five groups of defendants, each of which groups has filed a motion to dismiss plaintiffs' Complaint. The sixteenth defendant, whose name is unknown and who is identified as "Dr. Doe", did not file a motion to dismiss the Complaint.

The first group of defendants to file a motion to dismiss is comprised of the County of Delaware ("Delaware County") and employees of the Delaware County Children and Youth Services ("CYS"). These defendant employees are as follows: Mary Germond is the administrator of CYS; Meta Wertz is the intake administrator of CYS; Beth Prodoehl is the kinship administrator of CYS; Patricia McGettigan is the intake supervisor of CYS; and Gina Giancristiforo is the intake caseworker of CYS. *fn15 The Complaint alleges that these defendants (collectively, the "Delaware County defendants") are responsible for pursuing the dependency proceedings against plaintiffs. *fn16

The second group of defendants to file a motion to dismiss is comprised of the Delaware County District Attorney, G. Michael Green, and Delaware County Deputy District Attorney, Michael R. Galantino. Plaintiffs allege that these two defendants pursued criminal charges against Mr. Dennis for the alleged abuse of his son. *fn17

The third group of defendants that filed a motion to dismiss is the Pennsylvania State University Hershey Medical School ("PSUHMS"), *fn18 along with two employees; Danielle K. Boal, M.D., who is a radiologist, and Kathleen D. Eggli, M.D., who is the Chair of the Radiology Department. *fn19 These defendants (collectively, the "PSUHMS defendants") allegedly provided an expert medical report in preparation for the criminal prosecution of Mr. Dennis for the alleged abuse of his son. *fn20

The fourth group of defendants filing a motion to dismiss is The Nemours Foundation, which owns and operates the Alfred I. duPont Hospital for Children ("duPont Hospital") in Wilmington, Delaware, and two hospital employees. Defendant Allan R. DeJong, M.D. maintains a primary office at duPont Hospital. *fn21 Defendant Edward Speedling is a social worker at duPont Hospital. *fn22 These defendants (collectively, the "Nemours defendants") allegedly investigated and reported the possible abuse of B.D. upon his admittance to duPont Hospital. *fn23

Cindy W. Christian, M.D. filed the fifth motion to dismiss. She is a pediatrician at Childrens' Hospital of Philadelphia. *fn24 Plaintiffs aver that Dr. Christian provided an expert medical report in preparation for a criminal prosecution of Mr. Dennis for allegedly abusing his son. *fn25

CLAIMS

Count I of plaintiffs' Complaint alleges procedural and substantive due process claims pursuant to the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution against Delaware County, alleging that Delaware County created a conflict of interest by deputizing a CYS employee to serve as the Clerk of Juvenile Court.

Count II alleges procedural and substantive due process claims pursuant to the Fourth, Fifth, and Fourteenth Amendments against Ms. Wertz, Ms. McGettigan, Ms. Giancristiforo, and Delaware County. Count II alleges that Delaware County has a retaliatory policy of refusing to place a child with relatives when a removal occurs because CYS suspects that the parents are abusing the child, and the parents maintain their innocence. Count II further alleges that defendants failed to timely seek protective custody of B.D. It also alleges that defendants misrepresented facts and law in an ex parte request for protective custody.

Count III contains a procedural due process claim pursuant to the Fourth, Fifth, and Fourteenth Amendments against Mary Germond and Delaware County for excessive delay in filing the dependency petition in violation of 23 Pa.C.S.A. § 6315, and for misrepresentations and deficiencies in the dependency petition.

Count IV alleges procedural and substantive due process claims pursuant to the Fourth, Fifth, and Fourteenth Amendments against Ms. McGettigan and Delaware County for excessive delay in scheduling the dependency hearing in violation of 42 Pa.C.S.A. § 6335, and for defendants' failure to timely comply with mandatory discovery rules in conjunction with the dependency proceedings.

Count V contains a substantive due process claim pursuant to the Fourth, Fifth, and Fourteenth Amendments against Delaware County. The county is sued for its alleged retaliatory policy of refusing to allow plaintiff mother Renee Dennis longer visitation or the return of her son B.D., despite Mrs. Dennis's full compliance with the CYS Family Service Plan, because she maintained her innocence and her husband's innocence.

Count VI asserts a substantive due process claim against Delaware County District Attorney G. Michael Green and Delaware County for relying on the medical opinion provided by Dr. DeJong regarding B.D., despite Dr. DeJong's alleged history of biased and unreliable investigations of suspected cases of child abuse.

Count VII contains a substantive due process claim against Dr. DeJong, alleging that he made multiple reckless misrepresentations of medical findings in bad faith, which were not objectively reasonable, in order to support false allegations of child abuse. Count VII further alleges that Dr. DeJong's actions in investigating the alleged child abuse are fairly attributable to Delaware County and the Delaware County District Attorney.

Count VIII asserts civil conspiracy claims pursuant to 42 U.S.C. §§ 1981, 1983, and 1985 against Dr. DeJong, Ms. Wertz, Ms. McGettigan, and Mr. Speedling, for conspiring to deprive plaintiffs of equal protection of laws and due process. Count VIII is based upon defendants' alleged gender bias and racial animus. Specifically, Count VIII alleges that defendants' actions in connection with B.D.'s removal were motivated by gender and racial biases against Mr. Dennis, as an African-American male, and a racial bias against the Dennis family because of their interracial marriage.

Count IX alleges a due process claim under the Fourteenth Amendment against Dr. DeJong, Ms. Germond, Ms. Wertz, Ms. McGettigan, Ms. Giancristiforo, District Attorney Green, Deputy District Attorney Galantino, and Delaware County. They are sued for adopting a medical presumption - that a subdural hematoma in a child under one year of age is the result of child abuse - as a legal presumption in the dependency and criminal cases against Mr. Dennis.

Count X contains Fourth, Fifth, and Fourteenth Amendment claims against Ms. Germond, Ms. Wertz, Ms. McGettigan, Ms. Giancristiforo, and Delaware County for failure to properly train and supervise CYS employees. Count X alleges that plaintiffs' due process rights were violated because defendants failed to properly train CYS employees regarding filing dependency petitions, scheduling dependency trials, the appropriate use of ex parte communications with the court, the duty of candor to the court in ex parte communications, the unconstitutionality of gender bias in child abuse investigations, and the unconstitutionality of adopting the medical presumption identified in Count IX.

Count XI alleges a civil conspiracy claim pursuant to 42 U.S.C. §§ 1981, 1983, and 1985 against Dr. DeJong, Dr. Christian, Dr. Boal, and Deputy District Attorney Galantino. It alleges that they conspired to deprive Mr. Dennis of his equal protection and due process rights. Count XI alleges that defendants misrepresented the medical evidence concerning the age of B.D.'s subdural hematoma in order to continue a criminal investigation against Mr. Dennis and pressure him into pleading guilty.

Count XII contains Fourth, Fifth, and Fourteenth Amendment claims against District Attorney Green and Deputy District Attorney Galantino for failure to train and supervise Dr. DeJong. It also sues District Attorney Green for failure to train and supervise Deputy District Attorney Galantino, regarding the unconstitutionality of utilizing the medical presumption identified in Count IX as a legal presumption.

Count XIII asserts a due process claim pursuant to the Fourth, Fifth, and Fourteenth Amendments against PSUHMS and Dr. Eggli for implementing PSUHMS's expert witness policy in a discriminatory manner for the purpose of disadvantaging criminal defendants. Count XIII further alleges a claim for ineffective assistance of counsel pursuant to the Sixth Amendment. *fn26

Count XIV contains a pendent Pennsylvania state-law claim for negligence against The Nemours Foundation, which operates duPont Hospital, alleging that duPont Hospital negligently retained Dr. DeJong as the medical director in charge of child abuse investigations.

Count XV alleges a pendent Pennsylvania state-law claim for negligence against Dr. Doe, an unidentified doctor at duPont Hospital, alleging that he negligently performed a procedure on the wrong side of B.D.'s head on November 24, 2008.

Count XVI contains a pendent Pennsylvania state-law claim for malicious prosecution against Ms. Germond, Ms. Wertz, Ms. McGettigan, and Ms. Giancristiforo, alleging that they had no reasonable basis to continue dependency proceedings after Mrs. Dennis obtained positive reports from both a CYS parent educator and a CYS psychologist.

Count XVII alleges a pendent Pennsylvania state-law claim for malicious prosecution against Deputy District Attorney Galantino, alleging that he had no reasonable basis for continuing the criminal investigation of Mr. Dennis following the Delaware County Court of Common Pleas's dismissal of the dependency petition.

Count XVIII contains a pendent Pennsylvania state-law claim for civil conspiracy against Dr. DeJong, Ms. Wertz, Ms. McGettigan, and Mr. Speedling for agreeing among themselves to misrepresent information to the Chester County Police Department, and for misrepresenting that information to the police, in order to effectuate the arrest of Mr. Dennis.

Finally, Count XIX asserts a pendent Pennsylvania state-law claim for intentional infliction of emotional distress against Dr. DeJong, Ms. Wertz, Ms. McGettigan, and Mr. Speedling. It alleges that they retaliated against Mr. Dennis for retaining an attorney by enhancing their efforts to effectuate his arrest following his retention of the attorney.

STANDARD OF REVIEW

A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."

Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) "[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn27

In determining whether plaintiffs' complaint is sufficient, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff[s], and determine whether, under any reasonable reading, the plaintiff[s] may be entitled to relief." Fowler, 578 F.3d at 210 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although "conclusory or 'bare-bones' allegations will [not] survive a motion to dismiss," Fowler, 578 F.3d at 210, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff[s] can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231. Nonetheless, to survive a 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotation omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted therein. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded.

Id. at 210-211. Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiffs have a "plausible claim for relief." Id. at 211 (quoting Iqbal, __ U.S. at __, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiffs'] claims" over the line from "[merely] conceivable [or possible] to plausible." Iqbal, __ U.S. at __, 129 S.Ct. at 1950-1951, 178 L.Ed.2d at 884-885 (internal quotations omitted). A well-pleaded complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941.

FACTS

Accepting as true all of the well-pled facts in plaintiffs' Complaint, and drawing all reasonable inferences in favor of plaintiffs as the non-moving parties, which I am required to do under the above standard of review, the pertinent facts are as follows.

This case arises out of a child abuse investigation which resulted in plaintiffs Reginald Dennis and Renee Dennis temporarily losing custody of their infant son, plaintiff B.D. B.D., the first and only child of Mr. and Mrs. Dennis, was born on September 17, 2008 following a prolonged labor and delivery. *fn28

After a midwife made unsuccessful attempts to assist B.D.'s delivery, Mrs. Dennis went to Christiana Hospital *fn29 , where an obstetrician manually turned B.D.'s head in order to allow delivery. *fn30 On September 18, 2008, an attending physician at Christiana Hospital noted on B.D.'s chart that he had "overriding sutures", which means that the plates of his skull had not yet completely moved to the abutting position from the overlapping position during delivery because of the extreme compression and molding of B.D.'s head during the lengthy labor and delivery. *fn31

B.D. had multiple visits to pediatricians following his birth, and no evidence of pain or bruising was present, although B.D. did suffer from jaundice. *fn32 On November 18, 2008, after a routine pediatrician visit during which B.D. received a vaccination, B.D. became unusually fussy. *fn33

On November 20, 2008, B.D. was still experiencing a negative reaction to the vaccination. *fn34 Also on November 20, 2008, Mr. and Mrs. Dennis had dinner guests at their home, during which time Mr. Dennis took B.D. upstairs to change his diaper. *fn35

While he was upstairs alone with B.D., Mr. Dennis noticed a momentary limpness on B.D.'s left side and that B.D. was staring and had stopped crying. *fn36 Mr. Dennis called for Mrs. Dennis, but by the time she was upstairs, the limpness had subsided and she noticed nothing unusual. *fn37

Later that day B.D. continued to be fussy, and began vomiting, and at one point Mrs. Dennis noticed B.D.'s arm momentarily went limp. *fn38 On November 21, 2008 Mr. and Mrs. Dennis took B.D. to their family physician, who attributed B.D.'s behavior to a negative reaction to the vaccination he had recently received. *fn39

B.D.'s Admittance to Christiana Hospital

B.D.'s symptoms did not improve, and on November 22, 2008, Mr. and Mrs. Dennis took B.D. to Christiana Hospital. *fn40 At Christiana Hospital, a computed tomography scan ("CT scan") of B.D. was performed, which revealed that B.D. had a left frontal subdural hematoma. *fn41 The examination did not reveal a skull fracture or any bruising or external signs of trauma. *fn42

Nonetheless, Christiana Hospital referred the matter to CYS and transferred B.D. to duPont Hospital in Wilmington, Delaware. *fn43

B.D.'s Admittance to duPont Hospital

B.D. was admitted to duPont Hospital on November 22, 2008. On that date, a duPont Hospital radiologist found a "short segment of skull fracture identified in the left temporal region" on B.D.'s head CT scan. *fn44 However, a full skeletal x-ray performed at duPont Hospital on November 24, 2008 did not confirm this skull fracture, and revealed that B.D. had a recent re-bleed of a chronic subdural hematoma that was weeks or months old, and could date back to B.D.'s difficult birth. *fn45

In addition, radiologic studies at duPont Hospital revealed that B.D. had multiple healing anterior rib fractures, without any internal organ injury. *fn46 Congenital rickets, from which B.D. was suffering, is a type of metabolic bone disorder that can cause such anterior rib fractures. *fn47 The duPont Hospital radiologic studies showed no medical evidence of a skull fracture, neck or spine injury to B.D. *fn48

In addition to the radiologic studies, B.D. was evaluated by the Children At Risk Evaluation team ("CARE team") and the Children's Advocacy Center of Delaware ("CACD") at duPont Hospital. duPont Hospital *fn49 established the CARE team, which evaluates and identifies patients whose injuries indicate that they may be victims of child abuse. duPont Hospital appointed defendant Dr. Allan R. DeJong to serve as the medical director of the CARE team. *fn50 Defendant Edward Speedling, a social worker employed by duPont Hospital, served as a member of the CARE team. *fn51

duPont Hospital also hosts the CACD, which is a Delaware corporation that has a facility based at the hospital. *fn52

CACD operates a comprehensive program which allows law enforcement personnel, child protection professionals, prosecutors and medical personnel to work together when intervening in suspected child abuse cases. CACD appointed Dr. DeJong to serve as the statewide medical director of CACD. *fn53

Both the CARE team and CACD perform the same or similar functions in child abuse investigations at duPont Hospital. *fn54

On November 24, 2008, Mrs. Dennis was interviewed by Dr. DeJong and Mr. Speedling. *fn55 She explained that she knew of no trauma, accidental or inflicted, that B.D. had sustained, and she provided a history of B.D.'s difficult birthing process. *fn56

Mrs. Dennis explained that neither she nor Mr. Dennis had done anything to harm B.D. *fn57 She also explained the brief moments of left side limpness which she and her husband had observed on November 20, 2008. *fn58

In addition, Mrs. Dennis explained that when B.D.'s bilirubin level was extremely elevated in late October, which is a cause of jaundice, she noticed a small red mark on B.D.'s chest that disappeared by the following morning. *fn59 Although she did not know the cause of the mark, Mrs. Dennis discussed the mark with Mr. Dennis because she believed it may have been attributable to the way Mr. Dennis held B.D. when he was struggling or being fussy. *fn60 They determined how Mr. Dennis could hold B.D. differently in the event that his previous way of holding B.D. had been the cause of the mark. *fn61

Mrs. Dennis also explained that a week later a second red mark appeared on B.D.'s back, which again disappeared by the following morning. *fn62 She believed the snaps on B.D.'s clothing may have caused the mark, so she began to dress B.D. differently, and she did not observe any further marks on B.D. *fn63

Dr. DeJong's Representations to CYS and Officer Collins

CYS and Officer Collins *fn64 of the Chester County Police Department interviewed Dr. DeJong regarding the information he obtained from speaking with Mrs. Dennis. In interpreting his interview with Mrs. Dennis, Dr. DeJong claimed that Mrs. Dennis had provided no explanation for B.D.'s injuries, when in fact she had consistently described B.D.'s difficult birth. *fn65 Dr. DeJong also represented Mrs. Dennis's explanation of the two red marks she had observed in October as an admission that her husband had bruised B.D. in the past. *fn66

On November 24, 2008 Dr. DeJong created a medical report regarding B.D., wherein he described B.D. as a "91/2 week old biracial male." *fn67

In his November 24, 2008 medical report, Dr. DeJong represented to Officer Collins and CYS that Mrs. Dennis's description of how her husband witnessed B.D.'s left side limpness while he was alone with B.D., changing his diaper on November 20, 2008, as a potential "injury event". *fn68 Although the limpness was ultimately attributable to the re-bleeding of the subdural hematoma, which can occur spontaneously, Dr. DeJong classified the diaper-changing incident as an "injury event" during which time Mr. Dennis was abusing B.D. *fn69

Further, without reviewing the records of B.D.'s difficult birth, *fn70 Dr. DeJong interpreted the magnetic resonance imaging ("MRI") and CT scan as showing evidence of severe and significant skull fractures, *fn71 construing them in accordance with the November 20, 2008 "injury event" he surmised from his interview with Mrs. Dennis. *fn72

Dr. DeJong had concluded on or before November 26, 2008 that B.D.'s injuries were the result of abuse, and he represented that he had done "extensive" tests looking for non-traumatic explanations. *fn73 However, Dr. DeJong did not perform additional tests to rule out non-traumatic explanations for B.D.'s injuries, including congenital rickets, until early December of 2008. *fn74

Furthermore, although no duPont Hospital radiologists estimated the age of B.D.'s rib fractures, because dating such fractures is an "inexact science", *fn75 Dr. DeJong represented that the fractures were two-to-four-weeks old. *fn76

Dr. DeJong never asked Mrs. Dennis about her pregnancy or medical history, which would have revealed that she suffered from a Vitamin D deficiency. *fn77 Such deficiency is a cause of congenital rickets in infants, which can lead to metabolic bone disorders which cause the type of rib fractures present in B.D. *fn78

In addition, in Dr. DeJong's interview with Officer Collins, Dr. DeJong omitted the fact that although B.D. was on a ventilator, B.D. had been electively intubated in order to facilitate the performance of an MRI, and that B.D. was breathing on his own when he was initially admitted to duPont Hospital. *fn79

Further, Dr. DeJong informed CYS that "in the absence of any admission or disclosure by either parent of any abuse, it would be difficult to assure B.D.'s safety with either of his parents." *fn80

duPont Hospital discharged B.D. on December 9, 2008. At his discharge, a second full skeletal x-ray was performed. The results confirmed the findings of the November 24, 2008 full skeletal x-ray, which determined that B.D. did not have a skull fracture, or a fracture of any type on his body. *fn81

Arrest of Reginald Dennis

On November 25, 2008, Mr. and Mrs. Dennis voluntarily went to the CYS office where they were interviewed. *fn82 During the interviews, CYS stated its position that Mr. Dennis was the perpetrator of abuse by commission and that Mrs. Dennis was the perpetrator of abuse by omission, and that the police would be contacting them soon. *fn83 Following these interviews, defendant Patricia McGettigan, a supervisor at CYS, contacted Mr. Speedling at duPont Hospital and informed him "that there would be no change in [Mr. and Mrs. Dennis's] visitation [of B.D. at duPont Hospital] at this time." *fn84

Also on November 25, 2008, Mr. Speedling explained to Ms. McGettigan that the "medical team was very concerned about the child's injuries and felt that they were likely non-accidental." *fn85 Ms. McGettigan responded that although police interviews had not yet been conducted, she had left three messages for the Chester County Police Department to investigate the potential abuse. *fn86 Mr. Speedling asked Ms. McGettigan to call him "once she had talked with law enforcement." *fn87

Also on November 25, 2008, Mr. Speedling noted that he personally contacted the Chester County Police Department and left a message because he was "uncomfortable" with how the investigative process had been conducted thus far. *fn88 In the message which he left, Mr. Speedling requested that someone from the Chester County Police Department contact either him or Ms. McGettigan at CYS. *fn89

On November 26, 2008, Mr. Speedling noted at 12:11 p.m. that he had still not received a call from the Chester County Police Department, and that he and Dr. DeJong were "very concerned" that there had been no police response. *fn90

Mr. Speedling contacted Ms. McGettigan regarding his concern, and she informed him that she had not received a response from the Chester County Police Department and that Mr. Dennis had retained an attorney. *fn91 Mr. Speedling noted that he "updated the medical team about this investigative glitch", and he asked Ms. McGettigan to contact her supervisor to see if they could expedite a police response. *fn92

During their correspondence, Ms. McGettigan also indicated to Mr. Speedling that she would contact defendant Meta Wertz, an intake administrator for CYS. *fn93 Ms. McGettigan also suggested to Mr. Speedling that Mr. Speedling and Dr. DeJong attempt to reach Sergeant Archacki *fn94 of the Chester County Police Department in order to indicate the "pressing urgency." *fn95

In addition, Dr. DeJong called defendant Delaware County Deputy District Attorney Michael R. Galantino and told him that Mr. Dennis should be charged with child abuse and arrested immediately. *fn96 Also on November 26, 2008, Deputy District Attorney Galantino called Officer Collins and requested that the officer interview Mr. and Mrs. Dennis as soon as possible. *fn97

On that same date, Ms. McGettigan contacted both Officer Collins and Sergeant Archacki of the Chester County Police Department. *fn98 Following these phone calls, at 5:00 p.m. on November 26, 2008, Officer Collins went to duPont Hospital and interviewed Dr. DeJong. *fn99

Subsequently, Officer Collins called Deputy District Attorney Galantino to report the findings of his investigation, and he received authorization to file criminal charges against Mr. Dennis. *fn100 The Criminal Complaint charged Mr. Dennis with Simple assault, *fn101 Aggravated assault, *fn102 and Endangering welfare of children. *fn103

Officer Collins based his affidavit of probable cause entirely on his interview with Dr. DeJong. The officer obtained an arrest warrant at 10:29 p.m. on November 26, 2008 from Magisterial District Judge Nicholas S. Lippincott in Magisterial District 32-2-46, Media, Pennsylvania. *fn104

At 1:00 a.m. on November 27, 2008, which was Thanksgiving morning, Mr. Dennis was arrested at duPont Hospital by Officer Collins. *fn105 Bail was set at $100,000.00 cash bail. A condition of bail was that Mr. Dennis have no contact with B.D. *fn106

On December 3, 2008, after Mr. Dennis had been incarcerated for eight days, Mrs. Dennis's parents, Bob and Marlene Groff, posted bail and Mr. Dennis was released from jail. *fn107

Dependency Proceedings

As early as November 22, 2008, CYS indicated to Mr. and Mrs. Dennis that B.D. would likely be removed from their custody upon his discharge from the duPont Hospital because the CYS investigation would be incomplete. *fn108 On November 22, 2008, plaintiffs offered Mrs. Dennis's parents, the Groffs, who live in Lancaster County, as possible caregivers for B.D. in the interim. *fn109

During Mr. and Mrs. Dennis's November 25, 2008 interviews with CYS, they offered the Groffs again as caregivers for B.D. *fn110 However, CYS rejected the Groffs because it would be "too much paperwork" to place B.D. with family in Lancaster County. *fn111

As an additional reason to reject the Groffs, CYS also stated that the Groffs would have to make a two-hour commute each way with B.D. for the weekly supervised visits which CYS would allow with Mrs. Dennis at the Chester County CYS office. *fn112

Mr. and Mrs. Dennis additionally offered friends of the family, Bob and Linda Stevenson, located in Delaware County, as possible caregivers for B.D. if the Groffs were unacceptable. *fn113

On December 2, 2008, Ms. McGettigan informed Mr. Speedling that B.D. would not be going home with a relative or friend of the family upon his release from the hospital. *fn114 On December 8, 2008, although plaintiffs had explained to CYS that B.D. could be placed with Mrs. Dennis's parents or with the Stevensons, CYS informed plaintiffs that B.D. would be placed in foster care. *fn115

On December 9, 2008, defendant Gina Giancristiforo, an intake case-worker at CYS, sent an ex parte memorandum, signed by Ms. McGettigan and Ms. Wertz, to Delaware County Court of Common Pleas Judge Maureen F. Fitzpatrick. *fn116 Also on December 9, 2008, Judge Fitzpatrick issued an Order granting CYS protective custody over B.D. and approving B.D.'s placement in foster care. *fn117

The ex parte memorandum alleged that CYS had made reasonable efforts to place B.D. with family. *fn118 The ex parte memorandum additionally stated that "[t]here are no known family resources to care for the baby upon his discharge from the hospital." *fn119 Regarding the Stevensons, the ex parte memorandum alleged that "[c]ommunity caregivers have come forward and want to be considered as caregivers. It is the Agency's belief that the caregivers must complete a full resource home study before the agency would recommend that the baby be moved to their care." *fn120

In addition, the ex parte memorandum stated that Mrs. Dennis "told Children and Youth Services staff that she was fearful of allowing the baby to be alone with the father yet she failed to protect the baby based on her beliefs." *fn121 The memo further stated that Mrs. Dennis "admitted to observing on three separate occasions in the past bruises on the baby's torso, back, and chest." *fn122

On December 11, 2008, a post-deprivation hearing was held before Delaware County Children and Youth Master David McNulty, who explained that his authority to change B.D.'s placement was limited. *fn123 Master McNulty continued CYS's protective custody of B.D, and stated that the "investigation of the community resources" available to care for B.D. (that is, the Groffs and the Stevensons) should "continue" and be "expedited." *fn124 Plaintiffs' counsel informed Master McNulty that CYS was not willing to listen to the alternatives to foster care that plaintiffs had proposed, and Master McNulty responded that "those ears have been cleared." *fn125

On December 29, 2008, CYS filed a dependency petition, signed by defendant Mary Germond, an administrator of CYS, alleging that B.D. was a child dependent on the Commonwealth of Pennsylvania. *fn126 Specifically, despite the December 9, 2008 duPont Hospital full skeletal x-ray reports, which were given to CYS on December 11, 2008 and which confirmed that B.D. had no fractures, the petition alleged that B.D. had a skull fracture and "corner fractures of the long bone, right humerous [sic] and right distal radius." *fn127

CYS identified two expert medical witnesses whom it planned to call at the hearing, Dr. DeJong and Dr. Messam, *fn128 but it did not provide these reports to plaintiffs until February 17, 2009 and April 8, 2009, respectively. *fn129
The first day of the dependency hearing was scheduled by CYS for January 13, 2009 before Master McNulty. *fn130 However, Master McNulty had stated in chambers at the December 11, 2008 post-deprivation hearing that he had a conflict because he knew one of the witnesses for plaintiffs, and that he should not preside over the dependency hearings. *fn131 Accordingly, the case was "continued to [the] first available judge day." *fn132
CYS rescheduled the first day of the dependency hearing to February 20, 2009. *fn133 However, plaintiffs' counsel had a conflict and requested a continuance. *fn134 Because no dependency hearing had been held, Mrs. Dennis filed an emergency petition on February 19, 2009 to release B.D. pursuant to 42 Pa.C.S.A. § 6335. *fn135 At the hearing on February 20, 2009, the court denied Mrs. Dennis's petition, but CYS agreed to place B.D. in foster care with the Stevensons, which occurred on February 23, 2009. *fn136

For the six months that B.D. resided with the Stevensons, Mrs. Dennis was permitted one hour of weekly visitation with B.D. Mr. Dennis was not permitted any visitation with his son pursuant to condition of his bail. *fn137

Mrs. Dennis complied with CYS recommendations, pursuant to the Family Service Plan it devised for the Dennis family, that she see a CYS parent educator and obtain a psychological evaluation from a CYS psychologist. She received favorable evaluations from both experts. *fn138

Plaintiffs' counsel requested that Mrs. Dennis have longer visitation with B.D., or that B.D. be returned to Mrs. Dennis, on April 22 and July 20, 2009. *fn139 Nonetheless, CYS refused to provide Mrs. Dennis with longer visitation or to return B.D., even if Mr. Dennis agreed to leave the family home pending the investigation against him. *fn140

Specifically, on April 22, 2009, defendants Beth Prodoehl, the CYS kinship administrator, "deferred to" the judgment of Ms. Wertz, who refused to grant plaintiffs' request because Mr. and Mrs. Dennis were still married and were living together as husband and wife. *fn141 Ms. Wertz would not consider any changes in the visitation or placement until the dependency proceedings had been concluded. *fn142

The dependency hearing was continued from February 20, 2009 to April 22, 2009. The first day of the dependency hearing was scheduled by Ms. McGettigan, *fn143 and three subsequent days of the dependency hearing were scheduled by the court.

The hearing was conducted on June 2, July 8, and August 21, 2009. *fn144 At the hearing, CYS called Dr. DeJong as an expert witness. However, CYS never called Dr. Messam, the other medical expert it identified during discovery. *fn145

At the conclusion of the dependency hearings, the Delaware County Court of Common Pleas determined that, although the applicable standard was clear and convincing evidence, the allegations that B.D. were abused could not even be sustained by a preponderance of the evidence. *fn146 Therefore, the court dismissed the dependency petition. *fn147

B.D. was immediately returned to Mrs. Dennis on August ...


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