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Randy M. Mulholland and Christine Kurtz v. the Government of the County of Berks

March 28, 2012

RANDY M. MULHOLLAND AND CHRISTINE KURTZ,
PLAINTIFFS,
v.
THE GOVERNMENT OF THE COUNTY OF BERKS,
DEFENDANT.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

Randy Mulholland and Christine Kurtz sued the Government of Berks County, Pennsylvania under 42 U.S.C. § 1983 for violations of their procedural and substantive due process rights. After Plaintiffs rested their case at trial, Defendant moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The Court granted the motion. This Memorandum explains the reasons for that decision.

I. BACKGROUND

A. The July 1996 Incident

Randy Mulholland and Christine Kurtz live in Reading, Pennsylvania and consider themselves common-law husband and wife. (2/13/12 Trial Tr. at 99-100; 2/14/12 Trial Tr. at 70.) Together they are the parents offive adult children. (2/13/12 Trial Tr. at 104.)

Plaintiffs claim their due process rights were violated by the conduct of Berks County Children and Youth Services ("BCCYS"), an agency of Berks County, following an incident that took place in July 1996. (Def.'s Ex. 2 [Crime Investigation Report].) At the time, Mulholland and Kurtz were separated and living in different homes. (2/13/12 Trial Tr. at 100.) One of their daughters, Linda Kurtz, then twelve years old, went to spend the weekend at Mulholland's apartment. (Id. at 45-46; Crime Investigation Report.) On the evening of July 6, 1996, Linda called her mother and said that her father was drunk and making her uncomfortable. (2/13/12 Trial Tr. at 48, 101.) Angry that Mulholland had broken his promise not to drink around the children, Kurtz called the police and went to pick up Linda. (Id. at 101-04.) The police arrived at Mulholland's apartment shortly after Kurtz. (Id. at 102.)

According to the police report from that night, Linda told an officer that Mulholland had masturbated in her presence and made sexual comments. (Crime Investigation Report.) At trial, however, Linda denied speaking with the police that night and testified that Mulholland never said or did anything of a sexual nature. (2/13/12 Trial Tr. at 50-51.) On July 8, 1996, Kurtz filed a petition for protection from abuse against Mulholland in the Berks County Court of Common Pleas, which accused Mulholland of seeking sex from Linda. (Def.'s Ex. 3 [Petition for Protection from Abuse].) Kurtz testified at trial that she lied about Mulholland's actions in the petition because she thought allegations of Mulholland's drinking would not be sufficient to obtain a protection from abuse order. (2/13/12 Trial Tr. at 103, 148.)A judge entered a protection from abuse order after Mulholland failed to appear at two hearings. (Id. at 103; Def.'s Ex. 5 [Final Protection Order].)

Mulholland was ultimately charged with indecent exposure, endangering the welfare of children, and harassment stemming from the July 1996 incident. (Def.'s Ex. 20 [Criminal File].) He pled guilty to the harassment charge and paid a $50 fine. (Id.) The remaining charges were dismissed on September 24, 1996. (Id.) Mulholland believed that Kurtz, not Linda, was the victim of the harassment charge, although the restitution order referenced only Linda. (2/14/12 Trial Tr. at 78-80; Def.'s Ex. 10 [Restitution Order].)

On July 9, 1996, BCCYS caseworker Brandy Neider sent a CY-104 report of suspected child abuse to the Berks County District Attorney's Office. (Def.'s Ex. 2 [CY-104 Form]; 2/15/12 Trial Tr. at 58-65.) Additionally, on August 2, 1996, Neider completed a CY-48 child protective services investigation report identifying Mulholland as an "indicated" perpetrator of child abuse and sent it to ChildLine, a statewide child abuse registry maintained by the Pennsylvania Department of Public Welfare. (Def.'s Ex. 6 [CY-48 Form]; 2/15/12 Trial Tr. at 50-58.)The CY-48 form stated that the "[c]hild made consistent and believable statements to caseworker and collateral source" and that "[t]he perpetrator did not respond to request for interview." (CY-48 Form.) Neider testified that she had no independent recollection of the investigation-in her career she has performed over 750 investigations-but that the CY-104 and CY-48 forms were consistent with her usual investigation practices. (2/14/12 Trial Tr. at 208-09; 2/15/12 Trial Tr. at 56-57, 83-84.) However, all of the family members involved in the July 1996 incident testified that BCCYS never attempted to contact them as part of an investigation. (2/13/12 Trial Tr. at 52, 105-06; 2/14/12 Trial Tr. at 30, 77-78.)

Based on the CY-48 form sent by Neider, Mulholland was listed as an indicated perpetrator of child abuse on ChildLine. Mulholland testified that he never received notice of the ChildLine listing or the BCCYS investigation. (2/14/12 Trial Tr. at 81, 90-91.) He believed no record of the child abuse allegations remained once the charges of indecent exposure and endangering the welfare of children were dismissed. (Id. at 175.)

B. Subsequent Contacts with BCCYS

BCCYS's involvement with the family continued after the 1996 incident. In 1998, Linda ran away with a friend from Texas, where Linda was living in her grandmother's home, and called Mulholland from the bus terminal in Reading. (Id. at 82.) Mulholland picked up Linda and her friend, contacted BCCYS, and agreed to put the girls into a shelter until they could be returned to Texas. (Id. at 82-86, 178.) Linda spoke with a BCCYS caseworker who told her that she could not see her father because "he did something with [her]." (2/13/12 Trial Tr. at 54-55.) Linda denied the allegation but the caseworker "said she did not care and [did not] want to hear it." (Id. at 55.)

BCCYS attempted to renew its involvement with the family in 1999, after Plaintiffs' then-teenage son Irvin Martin-Green was adjudicated delinquent for raping his younger cousin. (2/13/12 Trial Tr. at 152-53; 2/14/12 Trial Tr. at 34.) Kurtz spoke with BCCYS about Irvin but refused services from the agency. (2/13/12 Trial Tr. at 153.) In response to a family service plan prepared by BCCYS, a lawyer representing Plaintiffs sent a letter instructing BCCYS "not to extend or offer any further services to this family." (Id. at 107-08; 2/14/12 Trial Tr. at 87; Pls.' Ex. 5 [8/13/99 Letter].) The letter also stated, [Y]our documentation refers to Mr. Mulholland as being a "perpetrator." Your Family Service Plan Review does not specify what you mean by a "perpetrator." It appears that you are insinuating that there has been sexual abuse committed by Mr. Mulholland. This allegation and reference is unfounded and you should immediately cease and desist from any such reference and delete any such reference from you[r] records. (8/13/99 Letter.) Several days later, the lawyer sent a second letter to BCCYS warning, Both Mr. Mulholland and Ms. Kurtz are extremely dissatisfied that inferences and innuendo are being made as to Randy Mulholland being a sexual predator. There is no record that Mr. Mulholland has been convicted of any charge involving sexual abuse, nor has there been any court finding that he has been involved in any sexual abuse. Therefore, he has directed that you should be instructed to cease and desist from making any inference or innuendo to that effect. The records of your agency should be expunged to delete any such reference. If you do not confirm that this has been done, Mr. Mulholland is considering further legal steps which will compel you to take this action.

(Pls.' Ex. 6 [8/24/99 Letter].) BCCYS never responded to either letter, and Mulholland testified that he assumed no further action was needed. (2/13/12 Trial Tr. at 112; 2/14/12 Trial Tr. at 93, 95.) Neider testified that BCCYS was never advised that two of the charges against Mulholland had been dismissed and that the letters from Plaintiffs' attorney did not put BCCYS on notice of the dismissal. (2/14/12 Trial Tr. at 207-08, 216.)

In 2001, Mulholland and Kurtz purchased a house and moved in together. (Id. at 94.) Kurtz's sister-in-law also moved into the house with her children. (Id. at 95.) In approximately 2003, a BCCYS caseworker visited the house regarding an incident involving Mulholland and Kurtz's niece and spoke with the family members in the home, including Mulholland. (2/13/12 Trial Tr. at 113; 2/14/12 Trial Tr. at 95-96.) The caseworker did not raise any concerns at that time about Mulholland living in the same home as the children. (2/13/12 Trial Tr. at 114; 2/14/12 Trial Tr. at 96.) Nor were any concerns raised about Mulholland's presence when a BCCYS caseworker visited the house in 2005 to investigate another incident involving Mulholland and Kurtz's son Nathan Mulholland. (2/13/12 Trial Tr. at 114-17; 2/14/12 Trial Tr. at 97-102; Pls.' Ex. 8 [11/22/05 Notes from Home Visit].)

Mulholland called BCCYS in September 2006 after Kurtz took their granddaughter S.G. away from the home of her parents, Irvin and his girlfriend. (2/13/12 Trial Tr. at 118-19; 2/14/12 Trial Tr. at 103-04.) Kurtz was concerned about S.G.'s safety because Irvin and his girlfriend were drinking heavily, using drugs, and neglecting their daughter. (2/13/12 Trial Tr. at 117-20; Pls.' Ex. 10 [Compl. for Custody].) A BCCYS caseworker visited Mulholland and Kurtz's home and determined that S.G. should stay there over the weekend. (2/13/12 Trial Tr. at 119-20; Pls.' Ex. 9 [9/23/06 Notes from Home Visit].) Kurtz subsequently filed a complaint for custody of S.G. in the Berks County Court of Common Pleas. (Compl. for Custody.) Mulholland and other family members, as well as several BCCYS employees, attended the custody hearing held on September 29, 2006. (2/13/12 Trial Tr. at 120-21; 2/14/12 Trial Tr. at 106-07.)

At the hearing, the BCCYS employees did not express any concerns about Kurtz taking custody of S.G., and the court granted temporary emergency custody to her. (2/13/12 Trial Tr. at 121; Pls.' Ex. 11 [Custody Order].) When Mulholland and Kurtz returned home with S.G. that evening, however, they encountered a group of BCCYS caseworkers and police officers. (2/13/12 Trial Tr. at 123.) BCCYS had obtained an emergency court order to remove the children from the home because Mulholland was an indicated perpetrator of child abuse. (Id. at 123-25; Def.'s Ex. 32 [9/29/06 Order].) Until that time, Mulholland and Kurtz had no knowledge of the ChildLine listing. (2/13/13 Trial Tr. at 163-64; 2/14/12 Trial Tr. at 182-83.) Plaintiffs' children were returned to Kurtz approximately six weeks later. (Def.'s Ex. 38 [11/8/06 Order].) To regain custody, Kurtz had to move into a separate residence while Mulholland attempted to challenge the ChildLine listing. (2/13/12 Trial Tr. at 125-27; 2/14/12 Trial Tr. at 112.)

The criminal charges of indecent exposure and endangering the welfare of children, which had been dismissed in 1996 but remained on Mulholland's criminal record, were expunged on May 4, 2007. (Pls.' Ex. 22 [Am. Expungement Order].) By the time Mulholland attempted to appeal his ChildLine listing in late 2007, BCCYS had destroyed its records of the 1996 investigation pursuant to state law.*fn1 (2/15/12 Trial Tr. at 57-58.) On October 8, 2008, following a hearing on the timeliness of Mulholland's appeal of the ChildLine listing, the Department of Public Welfare's Bureau of Hearings and Appeals found that the Department of Public Welfare had not sent proper notice of the listing and ordered a hearing on the merits. (Pls.' Ex. 33 [Interlocutory Order].) During the appeal, BCCYS argued that Mulholland's status should be changed from indicated perpetrator to founded perpetrator because he had pled guilty to the harassment charge arising from the July 1996 incident. (2/14/12 Trial Tr. at 115, 217.) At trial, Neider testified that this was a legal decision made by the county solicitor representing BCCYS in the appeal. (Id. at 217, 220-21.) By order dated March 2, 2009, the Bureau of Hearings and Appeals adopted the recommendation of an administrative law judge who found that no substantial evidence existed to maintain Mulholland's ChildLine listing. (Pls.' Ex. 35 [3/2/09 Order].) The decision was affirmed upon reconsideration by the Department of Public Welfare and on appeal to the Commonwealth ...

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