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Paul Bryan and Bonnie Bryan, Husband and Wife v. Erie County Office of Children & Youth

March 22, 2012

PAUL BRYAN AND BONNIE BRYAN, HUSBAND AND WIFE, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS ON BEHALF OF THEIR MINOR CHILD, K.B., AND K.B., PLAINTIFFS,
v.
ERIE COUNTY OFFICE OF CHILDREN & YOUTH, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiffs' original complaint was filed on August 12, 2003 and was dismissed by the Honorable Maurice B. Cohill, Jr. pursuant to Fed. R. Civ. P. 12(b)(6) by Opinion and Order dated September 28, 2006.*fn1 In that Order the Court dismissed the Erie County Office of Children & Youth ("OCY") defendants (and other defendants, unnamed herein in the First Amended Complaint) from all eight counts set forth in the Plaintiffs= original Complaint. On August 18, 2008, the United States Court of Appeals for the Third Circuit vacated that order with the directive that the Plaintiffs be permitted to amend their original Complaint.

On remand the Plaintiffs did so. The cause of action arises out of sexual assaults by J.O., a minor foster child placed in the home of Plaintiffs Paul and Bonnie Bryan. The Bryans have brought this lawsuit individually and as parents and natural guardians of their son, K.B., the victim of the assaults, against the OCY and several of its present or former employees.*fn2 At Count I, Plaintiffs claim that the Defendants violated K.B.'s federal substantive due process rights pursuant to 42 U.S.C. §1983 by virtue of their involvement in placing J.O. in the Bryan home. Count II alleges intentional infliction of emotional distress. A motion to dismiss the First Amended Complaint was denied on May 13, 2009.

Presently pending before the Court is a motion by the Defendants for summary judgment. The issues have been briefed and argued and the Court has reviewed the rather extensive record. Oral argument was held before the undersigned on July 21, 2011. Accordingly, Defendants' motion is ripe for disposition. For the reasons that follow, the motion will be granted in part and denied in part.

This Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1343(a) and 1367(a).

I. STANDARD OF REVIEW

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

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

II. BACKGROUND FACTS

A. Events Leading to J.O.'s Placement

On January 12, 1998, OCY caseworker Cyndi Steves (hereinafter, "Steves") petitioned the Erie County Court of Common Pleas, and the court entered an order that J.O. be detained in an emergency shelter within seventy two hours. (Defs.' Exs. A, B ). On January 16, 1998, Steves prepared an intake opening document which amassed detailed background information, and included a subsection known as a "risk assessment summary."*fn3 (Defs.' Ex. C.) In her intake opening document, Steves stated:

Both parents, along with their spouse or significant other, contacted this Agency and requested [J.O.]'s placement as none of the adults felt they could deal with his special emotional issues. [J.O.] has been diagnosed attention deficit/hyperactivity disorder along with conduct disorder. [J.O.] takes three different medications in an attempt to assist him in controlling his behavior. . . . He is physically violent, according to his parents, hitting, kicking and biting.

It was reported that the boy was fascinated with fire in the past and has been found playing with matches. It was also reported that [J.O.] was acting out sexually with a half-sister and a niece in North Carolina. Both parents also report the child is verbally threatening to blow things up, shoot people and stab people. He is reported to suffer from both enuresis and encopresis.

The child resided in the home with his mother from birth to 7 years old. [His mother] states that at age 3 she was having behavior problems with the child and did seek out services . . . Since none of this was effective, she made arrangements for the child to stay with his father. [J.O.] resided with his biological father for approximately one year during which time family tension increased and they felt they could no longer keep the child. Arrangements were made for [J.O.] to go stay in North Carolina with an extended family member. Supposedly, when [J.O.] was in North Carolina he acted out sexually with a younger child in that residence, and also was a behavior problem. After approximately one year, the relatives in North Carolina could no longer keep the child. They made arrangements for [J.O.] to come back to Pennsylvania and stay with his father again. (Id.) (emphasis added). As to the incident in North Carolina, Steves had not yet had the opportunity to speak with the "extended family member" in North Carolina who had custody of J.O. for approximately one year, and she suggested "it would be informative for someone to contact this person to obtain additional, first- hand information." (Id.)

When J.O. returned to the Erie area, his father and stepmother again suffered additional challenges, and ultimately took him to Clarion Psychiatric Hospital where he was admitted for approximately two weeks. (Id.) Upon his discharge, the father and stepmother did not want to continue to provide for J.O. and sent him back to his mother. (Id.)

Steves interviewed each family member. J.O. told her that he did not get along with his half-siblings, who continually lied about him. (Id.) He denied any wrongdoing, and also denied that he had been physically or sexually abused. (Id.) J.O.'s mother told Steves that his behavior was so extreme that the stress from living with him exacerbated her poor physical health and debilitating asthma. (Id.) J.O.'s mother's live-in boyfriend had issued an ultimatum that if J.O. were to return to his mother's care, he and his daughter would move out. (Id.) J.O.'s father and stepmother described J.O. as not having "any remorse or any conscience" and did not want to leave him alone, given his behaviors. (Id.) They likewise were not willing to have him return to their residence as they felt he needed more help than they were capable of giving. (Id.)

Steves also interviewed J.O.'s half-sister. She stated that there were two occasions when J.O. "had gotten on top of her in her bed" when she was fully clothed. (Id.) Steves summarized the information obtained from J.O.'s half-sister as follows:

On the first occasion three years ago, both [the half-sister] and [J.O.] were fully clothed and [J.O.] was just laying on top of her. When [she] came upon this sight she told [J.O.] to get off [the girl's] bed and to leave her alone. On the second occasion a month later, [J.O.] was found with his pants off laying on top of [her], who was again clothed. [She] stated that she was attempting to push [J.O.] off of her and that she told him to go put his pants on. [The half-sister] stated that [J.O.] never tried to touch her or have her touch him. (Id.)

On January 26, 1998, Jeff Rose (hereinafter, "Rose"), a caseworker in the sexual abuse unit at OCY assigned to J.O. after the intake procedure, completed a Protocol for Placement Review by Resource Management Team Document. (Defs.' Ex D at EC 1019-1020.) Rose testified that he had ruled out any foster home placement for J.O. because "[t]he behaviors cited by both parents would indicate this child would be a danger to himself, other foster kids and the foster home." (Pls.' Ex. P at 99.) Rose requested residential or group home placement (as opposed to foster home) because "J.O. was "diagnosed w/ADHD, conduct disorder, he supposedly sexually acted out, started fires, self-abusive, bangs his head eneuretic, encopretic, plays w/knives & numerous other acting out behaviors." (Defs.' Ex. D at EC 1019.)

Despite J.O.'s denial that he had been sexually abused, given his behaviors, child welfare authorities continued to explore that possibility. (Pls.' Ex. B at p. 35.) While J.O. was at the Edmund L. Thomas Shelter, on February 23, 1998, after holding a dispositional and placement review hearing, the Court of Common Pleas of Erie County entered an order that the OCY's Service Plan be adopted and that pursuant to that plan, inter alia, J.O. was to be placed with OCY for an indefinite period and to be assessed for the Sexual Abuse Initiative, including a psychological evaluation by Dr. Jerome L. Troncone. (Defs.' Ex. E at EC 956.) The Court ordered that "[J.O. was] to cooperate with this evaluation and any needed services to address any past issues of sexual abuse as well as his sexualized behaviors." (Id.) The court also approved the use of a County Wrap facilitator who would assist in accessing Therapeutic Support Services ("TSS") as well as mobile therapy, if necessary. (Id. at EC 957.) She further ordered that J.O. "become reinvolved with Family Based Mental Health services to address his behavior acting out, verbal aggression, lack of following established rules, poor socialization skills and any other needs as assessed by the Family Based Mental Health worker. (Id.)

Rose's misgivings concerning the suitability of foster care notwithstanding, J.O. was moved out of the emergency shelter and into a foster home, where he resided from February 27, 1998 until June 22, 1998. (Defs.' Ex. G). "[T]hat placement contained almost daily conflict between [J.O.] and the other foster children due to the punitive nature of the foster mother's approach to discipline and her increasing frustration with [J.O.]'s behavior, which was decompensating significantly." (Defs.' Ex. TT at EC 1657.) Accordingly, J.O. was moved to yet another foster home from June 24, 1998 through August 18, 1998. (Id.)

Pursuant to court order, OCY referred J.O. to Dr. Troncone who determined that J.O. was not a sexual perpetrator. (Defs.' Ex. F at EC 1352.) Dr. Troncone submitted his psychological evaluation to the OCY on July 24, 1998. (Id. at EC 1351-1353.) Dr. Troncone reached his conclusion after having interviewed caseworker Rose, J.O., J.O.'s natural mother, as well as reviewed the evaluations by Clarion Psychiatric Center and J.O.'s school. (Id.) Despite the information gathered at intake, according to Dr. Troncone, "[t]here [was] no documented history of this child sexually acting out." (Id.) J.O.'s mother indicated that she had had an "extremely difficult time adjusting to her son's high levels of energy, disruptive behaviors such as fire setting, disobedience, and running away from her. She indicated that she had asthma and was incapable of caring for her son . . ." (Id.)

In his report to the OCY, Dr. Troncone stated that J.O. had "denied all activity associated with any sexually non-appropriate activity with girls or boys either his own age or younger." (Id. at EC 1352.) He concluded that J.O. was "responding more like a victim of poor family dynamics rather than acting as a perpetrator or carrying largely perpetrator dynamics." (Id. at EC 1353). Dr. Troncone concluded that J.O. was "not appropriate for the Sexual Abuse Initiative since he primarily was operating as a victim and there [was] no substantiating evidence that he was engaged in sexually destructive behavior." He recommended that J.O. "continue to see a counselor . . . for basic psychoeducational instruction on sexuality, and boundaries." (Id. at EC 1353, ¶¶ 1, 2.)

J.O. was placed at Hamot Behavioral Health, a mental health facility, from August 18, 1998 through August 27, 1998. (Pls.' Ex. B at p. 38.) This was necessitated by a "suicidal gesture." (Pls.' Ex. E at EC 707.) The attending physician diagnosed him as suffering from conduct disorder, attention deficit disorder with hyperactivity, and dysthymia. (Defs.' Ex. UU.)

Upon release, with no other resources available for him, J.O. was placed in the Edmond L. Thomas Shelter from August 27, 1998 to October 2, 1998. (Defs.' Ex. G; Pls.' Ex. B at p. 39.). While there, on September 10, 1998, caseworker Rose prepared a risk assessment summary for the time period from August 21, 1998 through September 10, 1998. (Pls.' Ex. E.) Rose reported that the stepmother stated that she and J.O.'s father "had planned their marriage, their family and their lives and [J.O. did] not fit into that plan, especially with his behaviors. . . [They both] . . . stated they feel [J.O.] could be the next Jeffrey Dauhmer [sic]." (Id.) Rose concluded, "[h]is behavior and mental health have deteriorated in the last month and [J.O.]'s needs now include placement in a residential treatment program for his safety and the safety of others." (Id.)

From October 2, 1998 to August 30, 1999, J.O. resided at Sarah Reed Residential, where he "presented with emotional and behavioral challenges throughout this placement." (Defs.' Ex. G.) In a April 30, 1999 review hearing Transfer Summary, it was recommended that J.O. remain in residential treatment. (Defs.' Ex. VV at EC-737.) The following was also reported:

His behavior is reported to be out of control with physical aggression, biting, and kicking.

. . .[d]uring the past year, there have been no reported incidents of plying [sic] with fire or fire setting, [or] sexualized behaviors" [although J.O. continued] "to struggle with impulse control, acting out behaviors, and appropriate response to authority. [J.O.]'s behavior has regressed in the area of depression, which, as has been stated, is directly related to the fact that he cannot understand why he cannot return home. (Id. at EC-735.) Due to his depressed behavior and "poor progress in all areas, the team recommended that he remain at Sarah Reed Residential." (Id. at EC-736.)

Four months after this recommendation, J.O. was placed in another foster home, from August 30, 1999 through October 4, 1999. While there, according to Harborcreek admission materials, he showed "non-compliant behaviors as well as being physically aggressive and exhibiting sexually inappropriate behaviors during the second month of his foster care." (Defs.' Ex. G at p. 69.) It was further reported that he had made sexually inappropriate comments to girls on the school bus, had "mooned" children and had been found masturbating in his room. (Id.) He had also been aggressive toward other boys in the foster home, including pushing a six year old down who hit his head on the floor. (Id.)

OCY employees were aware of J.O.'s conduct. Defendant Renie Skalko (hereinafter, "Skalko") was the OCY caseworker*fn4 assigned to J.O.'s case throughout the relevant time period (from September 1999 through May of 2001); she also worked with defendant Cindy Baxter (hereinafter, "Baxter") in the host family program. (Pls.'s Ex. B at p 19, 26, 28, 40.) Skalko was aware that J.O.'s biological father had "reported that . . . J.O. was sexually acting out with a half-sibling in the home." (Id. at p. 35.) She also was aware that a foster mother had asked that he be removed from her home because he had "mooned" other kids on the bus, made sexually inappropriate comments to other children, either at the foster home or at school, and that he was not willing to work with Wraparound services or TSS. (Id. at p. 42.)

From October 4, 1999 through December 9, 1999, J.O. was back at the Edmond L. Thomas Shelter. (Id.) In the shelter he "presented in a manageable fashion, with periods of both 'ups' and 'downs' in his behavior." (Def.'s Ex. G.) He was ultimately moved from there as well.

B. J.O. resides at Harborcreek Youth Services Residential Treatment Facility

1. Admission and Identification for Host Family Program

On December 9, 1999, J.O. was admitted to Harborcreek Youth Services Residential Treatment Facility. (Defs.' Ex. G.) Harborcreek is a residential facility for children with behavioral/sexual offender and mental health issues. (Pls.' Ex. H at p. 42.) As of that date, J.O. had not been adjudicated for any sexual offense, (Pls.'s Ex. G at p. 56), although upon admission, his troubled history of behavior at the foster homes was laid plain. Under "Educational Concerns" it was reported that in September, 1999 he had been kicked off the school bus for threatening other students, swearing at the bus driver and not staying in his seat. (Defs.' Ex. G at p. 68.) In addition, his school principal reported he had sworn at teachers and was running in the halls. (Id.) Harborcreek's admission materials noted that J.O.'s special treatment needs included "impulsivity, socialization, anger management, feelings of abandonment and his negative feelings toward his father and stepmother." (Id.) The admission material made note that he continued to struggle with the fact that he could not return to the care of his parents. (Id. at p. 69.) Harborcreek's admission materials chronicled the following behavioral problems: swearing at the foster parents and other children, stealing, mooning other children in the neighborhood, messing in his pants and hiding the pants, being aggressive toward the other boys in the foster home, and he pushed a six year old down who hit his head on the floor. Foster parents also reported sexual acting out by stimulating himself against the side of the bed and he had been making sexually inappropriate remarks to girls in school and on the school bus.

(Id.) Three "high risk activities" were noted: fire-setting, "needed restraint," and sexual acting out. (Id.)

J.O.'s resided in Harborcreek's restrictive environment from December, 1999 through March 30, 2001, at which time he was placed in the Bryans' home. (Pls.' Ex. G at p. 9, 35; Defs.' Ex. Z.) As part of his treatment, Harborcreek implemented an Individual Service Plan ("ISP"). (Defs.' Ex. I.) The course of treatment for J.O. included therapeutic life skills group counseling for one-hour per day, six days a week, one-hour individual sessions twice per week, therapeutic task sheets which focused on individual treatment goals and objectives, appointments with clinical child psychiatrist Charles R. Joy, M.D., and attendance at Harborcreek Youth Services Campus school. (Id.)

On November 1, 2000, after a permanency hearing, the Erie County Court of Common Pleas found, inter alia, that "[t]he appropriate and feasible placement goal for the child is placement in another living arrangement intended to be permanent in nature," although placement at Harborcreek "continues to be necessary and appropriate." (Defs.' Ex. H at EC 930.)

The court ordered that OCY continue to explore and locate appropriate discharge resources for J.O., and upon location of an appropriate resource, permitted visitation between the family and J.O. (Id.) The OCY was further ordered to continue working on identifying a "host home" for J.O. (Id.)

As of November 9, 2000, Harborcreek records reflect that: [J.O. l]ikes to swear and curse when angry. When angry [he] tends to slam doors and will isolate himself in his room. [He] can be intrusive and impulsive, and explode without notice. [J.O.] demonstrates physical aggressive behavior around other youth. [J.O.] demands to have his own way and when not given his way [he] will instigate, cry, scream, throw, and throw a "hissy-fit" and disrespect authority figures. (Defs.' Ex. I at 967.)

The OCY host family program, which the court had referenced in its permanency hearing findings, was designed to help older foster children transition and succeed in a foster home, by establishing a relationship or bond with the family prior to permanent placement. (Pls.' Ex. I (Vol. I) at p. 97.) To that end, older children visited host family households for short one- or twoday stays on weekends. During the balance of the week, the child remained at the residential treatment facility ("RTF") for intensive treatment. (Pls.' Ex. Q at p. 50.) Host home providers received information about the child from the caseworker and were members of a treatment team which met periodically while the child was in residential care to discuss the child's progress. (Pls.' Ex. H at p. 23.)

Baxter identified the Bryans as a potential host family for J.O. at the request of her supervisor, Paul Cancilla.*fn5 (Pls.' Ex. H at p. 41.) The Bryans, who had been foster parents for Crawford County and other agencies for many years, began their foster parent training with the OCY in November, 2000. (Pls.' Exs. H at p. 62; Pls.' Ex. I (Vol. II) at p. 96-97.) By one account, they had fostered 45 children up to that point. (Defs.' Ex. AAA at p. 5.) Several months prior, in April of 2000, the Bryans had formally adopted plaintiff K.B., who had lived with them as a foster child beginning when he was six years old in January of 1998. (Pls.' Ex. I (Vol. I) at p. 22.) The Bryans resigned as foster care parents for Crawford County upon adoption of K.B on May 14, 2000. (Pls.' Ex. I (Vol. II) at p. 62-63.)

On November 3, 2000, the Bryans completed a foster Home Study form on which they indicated that they did not want a foster child that was a fire-setter or "severe sexual offender." (Pls.' Ex. J at p. 140.) This form was submitted to Baxter. (Id. at 141.) Skalko was aware of the content of the form. (Pls.' Ex. B at pp. 167-69.) At deposition she agreed that there were sufficient allegations to lead to the conclusion that, at a minimum, J.O. was a suspected past sexual offender. (Id. at pp. 169-71.)

Baxter recalled that at the time the Bryans were identified as a host family, OCY employees were aware that J.O. had sexually acted out. She testified that she was aware that J.O. had some "sexual[ly] inappropriate behavior with a sister," while in foster care he had touched the bottom or hit the bottom of a female, had "mooned" somebody on the bus, and while in foster care, had spoken in an sexually inappropriate way to children his age. (Pls.' Ex. H at 45-46.)

The Bryans were introduced to J.O. in November of 2000 at a preliminary meeting at Harborcreek. (Pls.' Ex. Q at p. 48.) After some deliberation they decided to move forward as a host family.

Skalko and Baxter met with the Bryans in their home on November 17, 2000. (Pls.' Ex. B at p. 48.) There is a disputed issue of material fact as to what the Bryans were told about J.O.'s history. According to Skalko, his behaviors, his diagnoses, the reasons he was placed in Harborcreek were discussed, as well as the workings of the host family program. (Id. at p. 49.)

It was OCY policy, as reflected in the foster care manual in effect at the time, to "give the foster parents as much information as possible or available to help the child settle into their home" including allegations of prior sexually inappropriate or aggressive acts towards other children, the nature of those acts, as well as the number of prior placements in the foster care system. (Id. at pp. 159-60.) Skalko recalled telling the Bryans: [t]hat both J.O.'s parents were not willing or unable to take care of him. And he had no contact with either parent. And the mother had a lot of medical issues. And the father wasn't able to control his behaviors because of the sexually acting out with another sibling in the home.

Q. You told the Bryans at that time that the biological father had been unable to control J.O. . . . because J.O. had been sexually acting out with another sibling in the home?

A. Yes, as well as defiant behaviors.

Q. And did you specify exactly the nature of the sexual acting out?

A. No, because we didn't know.

Q. Anything else about his sexual history that you discussed at that time?

A. The -- why he was removed from the most recent foster home. The mooning of other children, as well as making sexually inappropriate comments to other children.

Q. Anything else that you discussed about his sexual history in that meeting of November 17th?

A. They were told that J.O. is at Harborcreek, and he's receiving individual and group counseling through their sex offending -- offender program. And that they were working with him on that. (Id. at p. 50-51.)

Baxter testified that at her first in-depth meeting with the Bryans in the fall of 2000 she gave them detailed information concerning J.O.:

That he was not living with the mother or father, and that he was in residential. His mental health diagnosis, his behavioral issues, and his sexual acting-out issues. We also talked about what his needs would be. What type of situations to -- that he's in now, which would be the residential. And if they were interested at all in learning more about him. At that point we weren't requesting would they be his host home. We were asking would they like to learn more about him to become his host home. (Id. at p. 67.)

Baxter also recalled that at her first meeting with the Bryans they were told that J.O. "was out of control while in both [parent's separate] homes. . . . He had a sexual acting out with his sister, but [she] didn't know the specifics on that." (Id. at p. 68.) She further testified that the Bryans were told that J.O. had "touched or hit a girl on her bottom," had "mooned somebody on the bus," and had some "verbal sexual inappropriate behaviors." (Id. at p. 68.) Baxter admitted that at the time she approved the Bryans as foster parents, she was aware that their son K.B. was living in the home and that he was four years younger than J.O. (Id. at p. 214.)

Paul Bryan testified that at the first meeting he and his wife were only told that J.O. "had issues" but they were not told what the issues were. (Pls.' Ex. Q at p. 59.) He recalled being told only that J.O.'s mother didn't want him because she was changing husbands and that J.O. was oppositional defiant and had ADHD. (Pls.' Ex. Q. at p. 61) When he asked why prior foster care placements had been discontinued, he claimed he was told that "[i]t just didn't work out." (Pls.' Ex. Q at p. 62.) Bonnie Bryan testified that they were told simply that J.O.'s parents were divorced and that neither parent wanted him. (Pls.' Ex. I (Vol. II) at p. 54.)

2. Inter-Agency Treatment Team Meetings

William P. Kohler was employed by Harborcreek as Administrator of Clinical Services and was charged with the responsibility of reviewing, approving, and monitoring the implementation of the treatment plan agreed upon by the Inter-Agency Treatment Team involved in transitioning J.O. to the Bryan family as a foster child. (Defs.' Ex. K at ¶¶ 2, 3.) As will be discussed in more detail infra, there also is a genuine dispute of material fact as to what was disclosed to the Bryans at these meetings.

In his affidavit Kohler explains that at their regular meetings, the team discussed J.O.'s strengths, weaknesses, and needs for services. (Id.) Attendees signed an Inter-Agency Service Plan ("ISP") sign in sheet, as well as a treatment plan sign in sheet. The ISP meeting sign-in sheet indicated that a person was present at the meeting and the Treatment Plan sign-in sheet reflected that the signatories were aware of the treatment plan being proposed for that resident. (Defs.' Ex. MM at p. 58.) After the meeting, ISP Progress notes were prepared, which allegedly reflected the substance of the discussion at the meeting. (Defs.' Ex. OO at p. 56; Pls.' Ex. I (Vol. II) at p. 56.)

The record contains sign-in sheets which establish that between November 30, 2000 and March 15, 2001, while J.O. was visiting her home periodically on weekends under the host family program, Ms. Bryan attended six ISP meetings held on November 30, 2000, December 19, 2000, January 29, 2001, February 12, 2001, February 26, 2001, and March 15, 2001. (Defs.' Ex. K at ¶ 10.) According to William Kohler, and others, during at least five of those meetings (all but the one held just prior to discharge on March 15, 2001) J.O.'s history of sexually inappropriate behavior was discussed, and recommendations were made that J.O. either engage in or continue with treatment through Sexual Counseling Services ("SCS"). (Id. at ¶ 11; Defs.' Ex. NN at pp. 19, 27, 31-32.) This program provided counseling for individuals exhibiting a broad spectrum of sexually inappropriate behaviors, ranging from sexually acting out to actual sexual offenses. (Doc. 136 at p. 14.)

On December 19, 2000 the treatment plan sign in sheet was signed by the following: William P. Kohler (Administrator of Clinical Services), Dennis C. Overmoyer (Director of Residential Treatment Facility), Merritt L. Kleiner (Mental Health therapist), Barry Kohler (MH/MR Representative), Renie Skalko (County Placing Agency Representative) and Ms. Bryan. (Defs.' Ex. J.) The ISP report period being discussed that day was effective up to November 9, 2000, and spanned the eleven months prior thereto. (Id.) It explained the reason for placement, course of treatment, participation, strengths, limitations, visitation plans, and discharge plan. (Defs.' Ex. I.) The ISP then broke down into subcategories the various issues that Harborcreek staff were hoping to address. These included "sexually inappropriate behaviors." (Id.) The ...


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