Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Dennis v. DeJong

United States District Court, Third Circuit

June 14, 2013

REGINALD DENNIS, RENEE DENNIS and B.D., a minor, Plaintiffs
v.
ALLAN R. DEJONG, M.D.; COUNTY OF DELAWARE; MARY GERMOND; META WERTZ; BETH PRODOEHL; PATRICIA MCGETTIGAN; GINA GIANCRISTIFORO; and DR. DOE, Defendants

MARK D. FREEMAN, ESQUIRE On behalf of Plaintiffs

SARA PETROSKY, ESQUIRE On behalf of Defendants Allan R. DeJong, M.D.

SUZANNE MCDONOUGH, ESQUIRE On behalf of Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo

OPINION

JAMES KNOLL GARDNER, UNITED STATES DISTRICT JUDGE

OPINION TABLE OF CONTENTS

SUMMARY OF DECISION ..........................................2

JURISDICTION .................................................3

VENUE ........................................................3

PROCEDURAL HISTORY ...........................................4

STANDARD OF REVIEW ...........................................12

FACTS ........................................................14

CONTENTIONS OF THE PARTIES ...................................28

Contentions of Dr. DeJong ............................... 28

Contentions of Delaware County Defendants ............... 30

Contentions of Plaintiffs ...............................36

A. Claims against Dr. DeJong .......................36

B. Claims against the Delaware County defendants...37

APPLICABLE LAW ...............................................42

42 U.S.C. § 1983 ........................................42

Due Process in Child Abuse Cases ........................44

Immunities for Government Officials .....................47

Pennsylvania Law Governing Dependency Proceedings .......50

Intentional Infliction of Emotional Distress ............52

DISCUSSION ...................................................53

Count I .................................................53

Counts II-A and II-B ....................................53

Counts III and IV .......................................60

Count V .................................................66

Count VI ................................................68

Count VII ...............................................68

Count VIII ..............................................75

Count IX ................................................77

Count X .................................................77

CONCLUSION ...................................................78

This matter is before the court on three motions for summary judgment.

On December 16, 2012 plaintiffs filed their Notice of Motion, seeking partial summary judgment. On December 17, 2012 Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo’s Motion for Summary Judgment was filed.[1] Also on December 17, 2012 the Motion of Defendant, Allan R. Dejong, M.D., to Dismiss Plaintiffs’ Amended Complaint Pursuant to Federal Rule of Civil Procedure 56 with Supporting Memorandum, in the nature of a motion for summary judgment, was filed.

SUMMARY OF DECISION

With plaintiffs’ consent, Counts I, VI and VII against defendant County of Delaware, and Count IX against defendant Dr. Doe, are dismissed from plaintiffs’ Amended Complaint, with prejudice.

For the following reasons, I grant the motion for summary judgment of the Delaware County defendants and the motion for summary judgment of Dr. DeJong, concerning the remaining Counts in plaintiffs’ Amended Complaint: Counts II-A, II-B, III, IV, V, VII (against defendant Dr. DeJong), VIII and X. In addition, I deny plaintiffs’ motion for partial summary judgment.

Specifically, I conclude that in each of the counts asserted against the Delaware County defendants, plaintiffs have failed to establish that Delaware County violated plaintiffs’ substantive or procedural due process rights pursuant to an official custom or policy. Moreover, I conclude that plaintiffs’ claims against the individual Delaware County defendants are barred by absolute or qualified immunity.

Furthermore, I conclude that defendant DeJong is entitled to summary judgment because plaintiffs have failed to establish that Dr. DeJong acted under the color of state law as required to pursue a claim pursuant to 42 U.S.C. § 1983. Moreover, plaintiffs have failed to establish that Dr. DeJong conducted himself in a manner that was extreme and outrageous or shocked the conscience.

Accordingly, plaintiffs’ cross-motion for partial summary judgment is denied.

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.

PROCEDURAL HISTORY

This case arises out of a child abuse investigation which resulted in plaintiffs Reginald and Renee Dennis temporarily losing custody of their infant son, B.D. Mr. Dennis was separated from his son for over one year, and Mrs. Dennis was separated from her son for nine months.

On November 19, 2010 plaintiffs filed their initial Complaint, which asserted 19 Counts against sixteen defendants[2]Fifteen of those defendants formed five groups of defendants, and each group filed a motion to dismiss. The sixteenth defendant, whose name is unknown and who is identified as “Dr. Doe”, did not file a motion to dismiss the Complaint.

By Order and Opinion dated and filed September 30, 2011 the motion to dismiss filed by the Delaware County defendants was granted in part and denied in part. The other four motions to dismiss were granted. Pursuant to the September 30, 2011 Opinion, certain counts were dismissed with prejudice, and certain counts were dismissed without prejudice for plaintiff to file a more specific amended complaint.[3]

As a result of the September 30, 2011 Order and Opinion, the following claims remained in plaintiffs’ original Complaint and were permitted to be included in the amended complaint without change as authorized by the September 30, 2011 Order and Opinion:

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.

The following claims were dismissed from plaintiffs’ original Complaint without prejudice for plaintiffs to file an amended complaint in accordance with the September 30, 2011 Order and Opinion:

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 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.

On December 16, 2011 plaintiffs filed a 141-page Amended Complaint. Based upon its captions and subheadings, the Amended Complaint asserts the following eleven counts against eight defendants:[4]

Count I: Fourteenth Amendment Substantive and Procedural Due Process Claim Against Delaware County Delaware County’s Deputization of CYS to Act as Clerk of Juvenile Court and Failure to Properly Train the CYS Employee Acting as Court Clerk Violates Due Process and Resulted in the Delegation of Ministerial Function of Scheduling the First Day of Dependency Trials to Fellow CYS Employee (¶¶ 109-151)
Count II-A: Fourteenth Amendment Substantive and Procedural Due Process Claim Against Delaware County Delaware County’s Policy of Insisting on Placement with Strangers When Parents Maintain Their Innocence, Failure to Timely Schedule Shelter Care Hearing and Misrepresenting Facts and Law to Obtain Ex Parte Orders Finding that there are No Family or Community Caregivers Available to Care for the Child Violates Due Process (¶¶ 152-214)
Count II-B: Fourteenth Amendment Procedural and Substantive Due Process Claims Against Meta Wertz, Patricia McGettigan and Gina Giancristiforo Defendants Decision Not to Seek A Pre-Deprivation Hearing and Delay in Filing Ex Parte Memorandum and Insistence on Placement of B.D. with Strangers in Foster Care when Reggie and Renee Maintained Their Innocence Violates Due Process (¶¶ 215-218)
Count III: Fourteenth Amendment Procedural Due Process Claim Against Delaware County and Mary Germond Policy of Excessive Delay in Filing Dependency Petition Violates Due Process (¶¶ 219-234)
Count IV: Fourteenth Amendment Procedural Due Process Claim Against Delaware County, Patricia McGettigan and Gina Gian-cristiforo Excessive Delay in Scheduling Dependency Hearings and in Providing Discovery Months After the Filing of Dependency Petition Violates Due Process (¶¶ 235-271)
Count V: Fourteenth Amendment Substantive Due Process Claim Against Delaware County CYS’s Refusal to Allow More Time with B.D. and Refusal to Place B.D. with Renee Even After CYS’s Own Parent Educator Reported Renee had “Top Notch” Parenting Skills and CYS’ Own Psychologist Reported that if Anything Renee was “Overprotective” of B.D. was Retaliation for Renee Maintaining Innocence and Violates Due Process (¶¶ 272-284)
Count VI: Substantive Due Process Claim Against Delaware County Reliance on Dr. DeJong in the Face of Dr. DeJong’s Long History of Biased and Unreliable Investigations, Reports and Testimony Violates Due Process (¶¶ 285-348)
Count VII: Substantive Due Process Claim Against Delaware County and Dr. DeJong Dr. DeJong’s Pattern of Mu[l]tiple Reckless Misrepresentations of Medical Findings to Support False Allegations of Child Abuse is Not Objectively Reasonable, Constitutes Bad Faith and Shocks the Conscience and His Acts are Fairly Attributable to Delaware County (¶¶ 349-531)
Count VIII: Failure to Train Under the Fourteenth Amendment Against Delaware County Defendants Denied Reggie, Renee and B.D. of Due Process Under the Law by Failing to Properly Train and Supervise Intake Case Workers, Supervisors and Administrators about Procedural Due Process Regarding the Filing of Dependency Petitions and Scheduling of Dependency Trials, the Appropriate Use of Ex Parte Communication with the Court, the Duty of Candor to the Court in Ex Parte Communications (¶¶ 532-549)
Count IX State[-]Law Claim Negligence Against Dr. Doe Dr. Doe Negligently Evacuated the Wrong Side of B.D.’s Head (¶¶ 550-567)
Count X: State[-]Law Claim Against Dr. DeJong Intentional Infliction of Emotional Distress (¶¶ 568-578).

On January 4, 2012 the Delaware County defendants answered plaintiffs’ Amended Complaint.[5] On January 12, 2012 defendant DeJong answered the Amended Complaint.[6]

After conducting discovery, plaintiffs filed a motion for partial summary judgment on December 16, 2012. In their motion, plaintiffs seek judgment on Counts II-A, II-B, III, IV, V and VII.[7]

On December 17, 2012 the Delaware County defendants[8]and defendant DeJong[9] each filed a motion for summary judgment seeking judgment on all claims asserted against them.

On December 27, 2012 the Delaware County defendants responded in opposition to plaintiffs’ motion for partial summary judgment.[10] On January 9, 2013 defendant DeJong filed his response in opposition to plaintiffs’ motion for partial summary judgment.[11] Also on January 9, 2013 plaintiffs filed responses in opposition to the Delaware County defendants’ summary judgment motion[12] and Dr. DeJong’s summary judgment motion.[13]

In plaintiffs’ response to the Delaware County defendants’ motion for summary judgment, plaintiffs consent to the dismissal of Counts I, VI and VII against the Delaware County defendants.[14] Additionally, at oral argument on April 18, 2013 plaintiffs’ consented to dismissal of Count IX, which asserts a state-law negligence claim against Dr. Doe.[15]

On January 30, 2013 the Delaware County defendants filed a reply brief in response to plaintiffs’ memorandum of law in opposition to the Delaware County defendants’ motion for summary judgment motion.[16]

On April 18, 2013 I heard argument on the three within motions for summary judgment and took the matter under advisement.[17] Hence this Opinion.

STANDARD OF REVIEW

Rule 56(a) of the Federal Rules of Civil Procedure permits a party to seek summary judgment with respect to a claim or defense, or part of a claim or defense. Rule 56(a) provides, in pertinent part, that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); National Association for the Advancement of Colored People "NAACP" v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2012).

For a fact to be considered material, it “must have the potential to alter the outcome of the case.” Id. (citing Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)). Disputes concerning facts which are irrelevant or unnecessary do not preclude the district court from granting summary judgment. Id.

Where a party asserts that a particular fact is, or cannot be, genuinely disputed, the party must provide support for its assertion. Fed.R.Civ.P. 56(c)(1). Rule 56(c)(1) provides that party may support its factual assertions by

(A) citing particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

When considering a motion for summary judgment, the district court must view the facts and record evidence presented “in the light most favorable to the non[-]moving party.” North Hudson, 665 F.3d at 475 (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).

If the moving party shows that there is no genuine issue of fact for trial, “the non-moving party then bears the burden of identifying evidence that creates a genuine dispute regarding material facts.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Where a defendant seeks summary judgment, the plaintiff cannot avert summary judgment with speculation, or by resting on the allegations in his pleadings, but rather he must present competent evidence from which a jury could reasonably find in his favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995)(Reed, J.).

“Ultimately, [w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Id. (quoting Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (internal quotations omitted and alteration in original).

FACTS

My September 30, 2011 Opinion granting in part and denying in part defendants’ motions to dismiss, set forth in considerable detail the facts alleged in plaintiff’s initial Complaint, which Opinion I incorporate here. Because the standard of review for purposes of adjudicating the within summary judgment motions is not the same as the standard employed in my September 30, 2011 Opinion, which adjudicated multiple motions to dismiss, I only recount here the facts pertinent to the within summary judgment motions.

Accordingly, upon consideration of the pleadings, record papers, exhibits, declarations, and depositions, and drawing all reasonable inferences in favor of the non-moving party[18], as required by the forgoing standard of review, the pertinent facts are as follows.

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

Defendants are Allan R. DeJong, M.D., the Medical Director of the Child at Risk Evaluation (“CARE”) team at A.I. duPont Hospital for Children in Wilmington, Delaware;[19] the County of Delaware; and employees of the Delaware County Children and Youth Services (“CYS”). These CYS defendant employees are Mary Germond, Director; Meta Wertz, intake administrator; Beth Prodoehl, kinship administrator; Patricia McGettigan, intake supervisor; and Gina Giancristiforo, intake case-worker.[20]

Defendant Dr. Doe remains unidentified.

B.D., the first and only child of Mr. and Mrs. Dennis, was born at Christiana Hospital on September 17, 2008 following a prolonged labor and delivery.[21]

At the time of the child’s birth, an attending physician at Christiana Hospital noted that B.D.’s head was in a right occipital posterior position noted and 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.[22]

B.D. had multiple visits to pediatricians following his birth, and no evidence of pain or bruising was present. However, on two separate occasions, Mrs. Dennis noticed a single red mark, one appearing on B.D.’s collar bone, and one appearing on his back. In each instance the red mark disappeared the following morning.[23]

On November 20, 2008 Mrs. Dennis noticed a momentary episode of arm limpness and one-sided facial drooping in B.D. Additionally, B.D. was fussy and vomiting. The next day, 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 a vaccination he had recently received. However, plaintiffs’ doctor did not note any bruising or concern for trauma.[24]

B.D.’s symptoms did not improve, and on November 22, 2008, Mr. and Mrs. Dennis took B.D. to Christiana Hospital. 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.[25]

Although the examination did not reveal a definite skull fracture or any bruising or external signs of trauma, Christiana Hospital issued a Report of Suspected Child Abuse and referred the matter to CYS and transferred B.D. to A.I. duPont Hospital for Children.[26]

On November 22, 2008 B.D. was admitted to duPont Hospital. When B.D. was admitted, he required assisted ventilation, but at the time of his admission, his oxygen level remained stable and he was not placed on a traditional ventilator.[27]

On November 24, 2008 B.D. was given a follow-up CT scan, Magnetic Resonance Imaging (“MRI”) and a full skeletal x-ray. B.D. was placed on a conventional ventilator for administration of the MRI. On November 26, 2008 B.D. was removed from the ventilator, but had difficulty breathing. Accordingly, he was placed back on the ventilator until November 28, 2008.[28]

Because child abuse was suspected, Dr. DeJong, who served as the medical director of the CARE team, was assigned as a consultant to evaluate whether B.D.’s injuries were caused by abuse. Multiple doctors at duPont Hospital, including Dr. DeJong, analyzed B.D.’s medical records and CT scan, MRI and x-ray reports.[29]

The doctors who analyzed B.D.’s reports identified B.D. as potentially suffering from a skull fracture, subdural hematoma, and rib fractures. However, not all the doctors who analyzed B.D.’s records agreed on the specific age of B.D.’s injuries or the whether a skull fracture could be conclusively identified.[30]

On November 24, 2008, Dr. DeJong and former defendant Edward Speedling, a social worker who worked on the CARE team at duPont, interviewed Mrs. Dennis. Mrs. Dennis told Dr. DeJong and Mr. Speedling that her labor lasted 38 hours and explained that neither she nor Mr. Dennis had done anything to harm B.D.[31]

However, Mrs. Dennis also told Dr. DeJong and Mr. Speedling about the small red marks she observed on B.D. and revealed that she had spoken to Mr. Dennis about how to hold B.D. appropriately.[32]

Further, Mrs. Dennis told Dr. DeJong and Mr. Speedling that on November 20, 2008, B.D. was acting fussy and that Mr. Dennis spent 10-15 minutes alone with B.D to change his diaper. At that point, Mr. Dennis had called her to check on B.D. However, neither Mr. or Mrs. Dennis observed anything wrong B.D. at that time. However, later that evening when Mrs. Dennis was feeding B.D., she noticed that B.D. was not moving his arm and that his hands were shaking.[33]

CYS requested that Dr. DeJong summarize the information he had obtained and that Dr. DeJong provide his opinion on whether B.D.’s injuries were caused by abuse. Dr. DeJong indicated that B.D. suffered from a skull fracture and that his x-rays revealed healing rib fractures.[34]

Dr. DeJong opined in his report that the “injury events” may have occurred on November 20, 2008 and indicated that he suspected physical child abuse. Further, Dr. DeJong stated he did not believe B.D. would be safe alone with either Mr. or Mrs. Dennis.[35]

On November 25, 2008 Mr. and Mrs. Dennis voluntarily went to the CYS office to be interviewed by defendants Giancristiforo and McGettigan. Mr. and Mrs. Dennis were interviewed separately and each denied that B.D. was abused.[36]

Mrs. Dennis indicated during her interview that she had noticed bruising on B.D. in the past and had spoken to Mr. Dennis about how to hold B.D. appropriately. However, she also indicated that Mr. Dennis had not hurt B.D.[37]

Mr. and Mrs. Dennis requested that, if B.D. were removed from their care, that he be placed to live with either Mrs. Dennis’ parents, the Groffs, or their family friends, the Stevensons. CYS discouraged Mr. and Mrs. Dennis from seeking placement with the Groffs because the Groffs lived too far away from duPont Hospital, where continued treatment would be required after B.D. release. In her report of the interview, Ms. Giancristiforo indicated that an out-of-home placement was planned upon B.D.’s discharge from the hospital.[38]

Following the interview, Ms. McGettigan spoke to Officer James Collins, of the Chester County, Pennsylvania, Police Department about B.D. Officer Collins indicated that he planned to begin his investigation on December 2, 2008. Ms. McGettigan also spoke to Mr. Speedling about the interview with Mr. and Mrs. Dennis.[39]

Mr. Speedling was upset because the police had not become involved in the case. Accordingly, Ms. McGettigan suggested that either Mr. Speedling or Dr. DeJong contact the police as well.[40]

On November 26, 2008 Dr. DeJong telephoned former defendant, Assistant District Attorney Mike Galantino, who then called Officer Collins.[41]

On November 26, 2008 Officer Collins spoke to Dr. DeJong about B.D.’s injuries and Dr. DeJong’s interview with Mrs. Dennis. Dr. DeJong stated that Mrs. Dennis had not provided a viable explanation for B.D.’s injuries and stated that B.D.’s injuries likely occurred while B.D. was in the care of Mr. Dennis.[42]

Later on November 26, 2008 Officer Collins authored an Affidavit of Probable Cause, which he used to obtain an arrest warrant for Mr. Dennis. In the affidavit, Officer Collins indicated that B.D. was admitted to duPont Hospital for Children with severe skull fractures, bleeding on the brain, and 13 rib fractures, and that Dr. DeJong told Officer Collins that the head injuries to B.D. occurred when the child was in the care of Mr. Dennis.[43]

Mr. Dennis was arrested in the early morning of November 27, 2008. Bail was set at $100, 000.00 cash bail. A condition of bail was that Mr. Dennis have no contact with B.D.[44]

Following the arrest and incarceration of Mr. Dennis, Mrs. Dennis remained with B.D. at duPont Hospital. B.D.’s doctor indicated that, upon B.D.’s release from the hospital, the child would not require medical foster care. However, CYS insisted that B.D. be placed in foster care until a full home-study of the Stevenson’s was completed.[45]

B.D.’s expected release from duPont Hospital for Children was December 9, 2008. However, as a general practice, CYS does not seek protective custody of a child until the child is ready to be discharged from the hospital.[46]

On December 9, 2008 defendant Gina Giancristiforo authored a memorandum outlining the CYS allegations of abuse against Mr. and Mrs. Dennis and requested a protective order concerning the custody of B.D. Defendants Meta Wertz and Patricia McGettigan signed their approval of the memorandum, and it was sent ex parte to Judge Maureen F. Fitzpatrick in the Court of Common Pleas of Delaware County, Pennsylvania.[47]

The memorandum indicated that community caregivers (the Stevensons) had offered to serve as caregivers but that CYS would not recommend that the Stevensons be given care of B.D until a full home-study was completed.[48]

In addition, the memorandum indicated that Mrs. Dennis indicated that “the baby’s father could have caused the injuries” and 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.”[49]

On December 9, 2008, Judge Fitzpatrick issued an Order granting CYS protective custody of B.D. and approving B.D.’s placement in foster care.[50]

On December 11, 2008 a Right-to-Detain hearing[51] was held before Master David W. McNulty in the Court of Common Pleas of Delaware County, Pennsylvania. At the hearing, Mr. and Mrs. Dennis were represented by counsel and B.D. was assigned a Guardian Ad Litem, who objected to the return of B.D. to the Dennis household. At the conclusion of the hearing, an adjudication hearing was scheduled for January 13, 2009.[52]

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.

However, for various reasons the January 13, 2009 adjudication hearing was delayed.[53] 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. At a hearing on February 20, 2009, however CYS agreed to place B.D. in foster care with the Stevensons, and plaintiffs considered their emergency petition to be moot. On February 23, 2009 B.D. was placed with the Stevensons.[54]

Once B.D. was placed at the Stevensons, Mrs. Dennis was permitted to attend supervised weekly one-hour visits with B.D. During her visits, Mrs. Dennis acted appropriately with B.D. Additionally, Mrs. Dennis successfully completed parenting classes and met the other requirements specified in her Family Service Plan.[55]

Ultimately, the adjudicatory hearing commenced on April 22, 2009. However, the hearing was not completed and it reconvened on June 2, 2009 and then again on July 8, 2009 and August 21, 2009.

At the July 8, 2009 hearing, counsel for plaintiffs’ requested that the visitation schedule for Mrs. Dennis while B.D. remained at the Stevenson’s be liberalized. Judge Coll indicated that he would consider the request at the conclusion of the hearing.[56]

On August 21, 2009, 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 be sustained even by a preponderance of the evidence. Therefore, the court dismissed the dependency petition and B.D. was immediately returned to Mrs. Dennis on August 21, 2009.

Following the dependency hearing, Assistant District Attorney Galantino decided to pursue the criminal charges against Mr. Dennis. However, the Delaware County defendants were not involved in the criminal prosecution of Mr. Dennis.[57]

During criminal proceedings against Mr. Dennis, Dr. DeJong advised Attorney Galantino and other law enforcement personnel about the nature and circumstances surrounding B.D.’s injuries. Throughout this period, Dr. DeJong opined that B.D. had suffered an inflicted head trauma which likely occurred on November 20, 2008.[58]

Ultimately, Mr. Dennis was accepted into the Accelerated Rehabilitative Disposition (“A.R.D.”) pre-trial disposition program.[59] Under the A.R.D. program, Mr. Dennis did not have to plead guilty to the charges asserted against him (Aggravated assault, Simple assault, and Endangering welfare of children), and upon completion of the program, the charges were dismissed.[60]

On November 19, 2010 Mr. and Mrs. Dennis filed their initial civil Complaint in the within matter.

CONTENTIONS OF THE PARTIES

Contentions of Dr. DeJong

Plaintiffs have asserted a substantive federal due process claim (Count VII) and a state-law claim for intentional infliction of emotional distress against defendant Allan R. DeJong (Count X).

Defendant Dr. DeJong contends that he is entitled to judgment in his favor on both claims.

Regarding plaintiffs’ substantive due process claim, Dr. DeJong contends that plaintiffs’ claim fails because he is not a state actor; and, even if he were a state actor, plaintiffs have not provided evidence that Dr. DeJong engaged in reckless behavior.

Specifically, Dr. DeJong contends that he was acting as a private physician and that he was not acting at the direction of CYS or the Delaware County District Attorney. Instead, Dr. DeJong asserts that he was asked to give his opinion as to whether B.D. was abused. Further Dr. DeJong asserts that the District Attorney pursued criminal charges against Mr. Dennis based on multiple medical opinions--not just the opinion of Dr. DeJong.

Dr. DeJong contends that even if he were a state actor, plaintiffs’ substantive due process claim fails because plaintiffs have failed to establish that Dr. DeJong acted arbitrarily, in a manner that “shocks the conscience”.

Specifically, Dr. DeJong contends that evidence supports all of his statements concerning the condition of B.D. and supports his opinion that B.D. was abused. More specifically, Dr. DeJong contends each of the following assertions made by him, which plaintiffs characterize as misrepresentations, are supported by evidence: (1) B.D. was on a ventilator; (2) B.D. had fractured ribs; (3) B.D. had brain bleeding; and (4) B.D. had a skull fracture. Furthermore, Dr. DeJong contends that plaintiffs have not provided sufficient evidence that Dr. DeJong misrepresented the conversation he had with Mrs. Dennis about B.D.

Regarding plaintiffs’ state-law claim against Dr. DeJong for intentional infliction of emotional distress, Dr. DeJong contends that he is entitled to summary judgment because (1) plaintiffs have failed to establish that Dr. DeJong acted in an extreme or outrageous manner; (2) plaintiffs have failed to produce an expert opinion indicating that the actions of Dr. DeJong caused plaintiffs to suffer emotional distress; and (3) Dr. DeJong is immune from suit as a private physician required to report suspected child abuse and as an expert witness.

Contentions of Delaware County Defendants

Plaintiffs assert federal substantive and procedural due process claims against defendant County of Delaware in Counts I and II-A of their Amended Complaint. Plaintiffs assert procedural due process claims against Delaware County in Counts III and IV. Plaintiffs assert substantive due process claims against Delaware County in Counts V, VI, VII and VIII.

Plaintiffs assert substantive and procedural due process claims against three of the individual Delaware County defendants in Count II-B[61]. Plaintiffs assert procedural due process claims against one individual defendant in Count III[62], and against two individual defendants in Count IV[63].

The Delaware County defendants collectively moved for summary judgment on all claims asserted against them. Because plaintiffs consented to the dismissal of Counts I, VI and VII against the Delaware County defendants, I address only their contentions concerning the remaining counts.[64]

In Count II-A, plaintiffs allege that Delaware County violated plaintiffs’ substantive and procedural due process rights based on Delaware County’s (1) placement of B.D. with strangers when Mr. and Mrs. Dennis maintained their innocence; (2) failure to timely schedule a shelter care hearing; and (3) misrepresentation of facts and law in an ex parte memorandum to obtain a custody order.

The Delaware County defendants contend that plaintiffs have failed to produce evidence that the conduct of defendants “shocks the conscience” and failed to establish that Delaware County had a custom or policy of unconstitutional conduct.

Specifically, the Delaware County defendants contend that plaintiffs have not shown that Lancaster County, where Mrs. Dennis’ parents lived, would have accepted the transfer of B.D., and therefore placing B.D. in foster care did not violate plaintiffs’ rights. Furthermore, the Delaware County defendants assert that plaintiffs never advised the Delaware Court of Common Pleas that they desired B.D. to be placed with his grandparents.

Count II-B asserts a substantive and procedural due process claim against three of the individual Delaware County defendants (Wertz, McGettigan and Giancristiforo) based on their failure to seek a pre-deprivation hearing. The Delaware County defendants contend that plaintiffs do not have a right to a pre-deprivation hearing.

Moreover, the Delaware County defendants contend that it is constitutional to initiate child custody proceedings by obtaining an ex parte order.

Finally, the Delaware County defendants contend that even if a constitutional violation had occurred, all of the individual defendants are entitled to absolute or qualified immunity.

In Count III, as asserted against Delaware County and Mary Germond, plaintiffs allege that their rights to procedural due process were violated based on Delaware County and Ms. Germond’s failure to file a dependency petition within 48-hours.

The Delaware County defendants contend that plaintiffs have failed to establish that such delays were part of a custom or policy or that defendant Germond caused any of the delay. Rather, the Delaware County defendants contend that the evidence demonstrates that the delay in seeking the dependency petition was inadvertent and that there is no evidence of purposeful delay.

Moreover, the Delaware County defendants assert that the delay in filing the dependency petition did not delay the scheduling of the hearing and that even if a constitutional violation had occurred, Mary Germond is entitled to qualified immunity.

Count IV also asserts that Delaware County, Patricia McGettigan, and Gina Giancristiforo violated plaintiffs’ procedural due process rights based upon the delay in scheduling dependency hearings. The Delaware County defendants contend that plaintiffs do not have an absolute right to an adjudication hearing within 10 days of the filing of a dependency petition. Moreover, the Delaware County defendants assert that the court–not the child welfare agency–-is responsible for scheduling the hearing.[65]

Moreover, the Delaware County defendants contend that plaintiffs’ counsel was not prepared to proceed at an earlier dependency hearing and continued the case to a later time in order to procure experts and discovery.

Next, the Delaware County defendants contend that plaintiffs have failed to demonstrate that the alleged violations amounted to more than mere negligence. Finally the Delaware County defendants contend that even if the delay of the dependency hearing amounted to a constitutional violation, the individual defendants are entitled to qualified immunity.

In Count V, plaintiffs assert a substantive due process claim against Delaware County based upon CYS’ refusal to provide Mrs. Dennis with more visitation rights with B.D., allegedly in retaliation for Mrs. Dennis maintaining her innocence.

The Delaware County defendants contend that plaintiffs have failed to show that the refusal of CYS to return B.D. to Mrs. Dennis’ home pending the investigation and hearing was retaliatory.

Moreover, the Delaware County defendants contend that the issue of visitation rights was before the Delaware County Court of Common Pleas and that the recommendations of CYS were approved by that court. Therefore, defendants assert that plaintiffs cannot challenge the actions of CYS, which were taken in the interest of B.D.

In Count VIII, plaintiffs assert a claim against Delaware County based on its failure to properly train and supervise caseworkers, supervisors and administrators regarding filing dependency petitions, scheduling dependency trials and ex parte communications with the court.

The Delaware County defendants contend that Count VIII fails as a matter of law because plaintiffs have failed to establish that the city officials were acting pursuant to an official policy or a custom so permanent and well-settled as to have the force of law.

Specifically, the Delaware County defendants contend that plaintiffs lack any factual support for their allegation that the County adopted a medical-legal presumption that subdural hematomas in babies are caused by physical abuse.

Moreover, the Delaware County defendants assert that plaintiffs have failed to produce any evidence that Delaware County has a policy of delaying either the filing of dependency petitions or the holding of hearings.

Accordingly, the Delaware County defendants contend that plaintiffs have failed to establish that defendants failed to supervise or adequately train its employees.

Contentions of Plaintiffs

A. Claims against Dr. DeJong

Plaintiffs contend that Dr. DeJong is not entitled to summary judgment.[66] Specifically, plaintiffs contend that Dr. DeJong is a state actor because he serves as the medical director of the Child Advocacy Center of Delaware (“CACD”) at duPont hospital. Plaintiffs assert that CACD functions as a state agency and coordinated its investigation of Mr. Dennis with law enforcement officers and the Delaware County defendants.

Plaintiffs further contend that Dr. DeJong should be considered to be a state actor because the Delaware County defendants and law enforcement officials exclusively relied on his opinions in the handling of the investigation concerning whether B.D. was abused by Mr. Dennis.

Plaintiffs also assert that they have produced sufficient evidence that Dr. DeJong misrepresented medical evidence.[67] Further, plaintiffs contend that Dr. DeJong is collaterally estopped from arguing that B.D. was abused because the Delaware County Court of Common Pleas had already held that the Delaware County defendants, with Dr. DeJong as their primary witness, failed to provide sufficient evidence of abuse.

Furthermore, plaintiffs contend that Dr. DeJong made the following misrepresentations: (a) that B.D. was on a ventilator when admitted to duPont hospital; (b) that B.D.’s rib fractures were two to four weeks old (to correspond to his assertion that the red marks on B.D. were traumatic bruises); (c) that B.D. had a significant skull fracture; (d) the timing of B.D.’s subdural hematoma blood collection (to falsely rule out birth trauma as a cause); and (e) the statements Dr. DeJong attributed to Mrs. Dennis.

Plaintiffs contend that issues of fact preclude granting summary judgment to Dr. DeJong on their claim for intentional infliction of emotional distress. Specifically, plaintiffs contend that the pattern of misrepresentations made by Dr. DeJong amount to outrageous conduct and that Dr. DeJong is not immune from suit because the misrepresentations were made in bad faith.

B. Claims against the Delaware County defendants

Plaintiffs consent to the dismissal of Counts I, VI and VII against defendant County of Delaware. However, plaintiffs contend that neither defendant County of Delaware nor any individual Delaware County defendant is entitled to summary judgment on the remaining counts, II-A, II-B, III, IV, V and VIII.[68]

Plaintiffs contend that neither Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), nor Giles v. Davis, 427 F.3d 197 (3d Cir. 2005) bar the claims asserted by Mr. Dennis. Specifically, plaintiffs contend that Mr. Dennis’ entrance into the state Accelerated Rehabilitative Disposition program in a criminal case does not bar his civil claims in a dependency matter.

In addition, plaintiffs contend that B.D.’s claims are cognizable. Specifically, plaintiffs assert that the Delaware County defendants have not cited any authority which indicates that being represented by a guardian ad litem bars B.D., or Mr. and Mrs. Dennis, from bringing their claims.

Regarding Count II-A, plaintiffs contend that Mr. and Mrs. Dennis clearly expressed their desire that B.D. be placed with the Stevensons rather than in foster care with strangers. Further plaintiffs contend that the law did not require a “full home study” prior to placing B.D. with the Stevenson’s, and that the County of Delaware Ex Parte Memorandum misrepresented that a full home study was required.

Accordingly, plaintiffs contend that the Delaware County defendants’ summary judgment motion with respect to Count II-A should be denied and that plaintiffs’ summary judgment motion should be granted.

With respect to Count II-B, plaintiffs contend that in this case, use of an ex parte memorandum and taking custody of B.D. without a pre-deprivation hearing deprived plaintiffs of their federal due process rights.

Specifically, plaintiffs contend that Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir. 1999) is distinguishable from this case and stands for the proposition that ex parte requests are constitutional only in an emergency, where pre-deprivation process would insufficiently protect the safety of a child. Here, plaintiffs assert that no emergency justified use of the ex parte memo or removal of B.D. from his parents’ custody without a pre-deprivation hearing.

Regarding Count III, which alleges due process violations for defendants’ late filing of the dependency petition, plaintiffs contend that defendants are not entitled to summary judgment.

Specifically, plaintiffs contend that Pennsylvania law requires a dependency petition to be filed within 48 hours if at an informal hearing protective custody is deemed necessary.

Further, plaintiffs contend that the dependency petition gives them notice that abuse is suspected. Accordingly, plaintiffs contend that they suffered harm from the delay and the inadequate petition because those things prejudiced them from preparing their defense.

Count IV alleges federal due process violations based on the delay in scheduling the dependency hearing and delay in providing plaintiffs with discovery. Plaintiffs contend that defendants are not entitled to summary judgment because the Delaware County defendants delayed providing plaintiffs with defendants’ expert reports during the dependency proceedings.

Plaintiffs contend that the delay of the Delaware County defendants in producing their expert reports forced plaintiffs to seek continuances of the dependency trial, thereby delaying the dependency proceedings.

Plaintiffs also contend that the Rooker-Feldman doctrine does not bar their claim because plaintiffs are not seeking reversal of any state court order. Specifically, plaintiffs argue that they are not contending that the Delaware Court of Common Pleas failed to release B.D. Rather, plaintiffs contend that the Delaware County defendants had full control over scheduling the first day of the dependency hearing and that those defendants delayed scheduling this proceeding.

Count V asserts that the Delaware County defendants violated plaintiffs’ due process rights by refusing to permit Mrs. Dennis to visit B.D. more frequently while the dependency proceedings were pending. Plaintiffs assert that the Delaware County defendants withheld more frequent visitation rights because Mrs. Dennis proclaimed her innocence.

Plaintiffs contend that defendants are not entitled to summary judgment because Mrs. Dennis was described as having good parenting skills, and therefore the Delaware County defendants did not have a valid basis to restrict visitation rights of Mrs. Dennis.

Count VIII asserts a claim against Delaware County for failure to properly train and supervise caseworkers, supervisors and administrators about dependency proceedings. Plaintiffs contend that the Delaware County defendants are not entitled to summary judgment on this count because the County maintains an unconstitutional policy of never providing pre-deprivation hearings when Delaware County employees seek protective custody of a child.

Further, plaintiffs assert that defendant Mary Germond, the top administrator at CYS, required her name to be affixed to every dependency petition, but that she did not review those petitions to ensure that they comported with the applicable rules. Nor did Ms. Germond review the facts of the dependency cases with the intake administrator.

Finally, plaintiffs contend that defendant Germond’s lack of knowledge about the particular dependency petition in this case does not absolve her from liability.

APPLICABLE LAW

In order to address the merits of each party’s motion for summary judgment, it is necessary to examine the applicable law governing plaintiffs’ claims.

42 U.S.C. § 1983

Plaintiffs’ assert constitutional claims actionable against defendants through 42 U.S.C. § 1983. Section 1983 is an enabling statute which does not create any substantive rights. Rather, it provides private citizens with a remedy for the violation of federal constitutional or statutory rights by a state actor. Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). To state a claim under section 1983, plaintiffs must allege that a defendant acting under color of state law deprived plaintiffs of a federal constitutional or statutory right. Gruenke, 225 F.3d at 298.

After the United States Supreme Court decision in Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-2038, 56 L.Ed.2d 611, 638 (1978), a local government cannot be sued pursuant to section 1983 for injuries inflicted solely by its employees. Rather, local governments can only be held liable under section 1983 for “their own illegal acts”. Connick v. Thompson, U.S., , 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417, 426 (2011) (internal quotations omitted)(emphasis in original).

The United States Court of Appeals for the Third Circuit has recognized liability for local governments in three circumstances:

First, the municipality will be liable if its employee acted pursuant to a formal government policy or a standard operating procedure long accepted within the government entity; second, liability will attach when the individual has policy making authority rendering his or her behavior an act of official government policy; third, the municipality will be liable if an official with authority has ratified the unconstitutional actions of a subordinate, rendering such behavior official for liability purposes.

McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005)(internal citations omitted).

Plaintiffs must prove that the action in question conducted pursuant to official municipal policy caused their injury. Connick, U.S. at, 131 S.Ct. at 1359, 179 L.Ed.2d at 426.

An official municipal policy includes (1) the decisions of a government’s lawmakers, (2) the acts of its policymaking officials, and (3) practices so persistent and widespread as to practically have the force of law. Id.

An official has policymaking authority for Monell purposes when (1) as a matter of state law, the official is responsible for making policy in the particular area of county business in question; and (2) the official’s authority to make policy in that area is final and unreviewable. Hill v. Borough of Kutztown, 455 F.3d 225, 245-246 (3d Cir. 2006).

Accordingly, a municipality may be liable for a single act by a policymaking official if that the action is taken or directed by the county’s authorized decisionmaker. Oklahoma City v. Tuttle, 471 U.S. 808, 823-824, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791, 804 (1985).

Likewise, when a subordinate's decision is subject to review by the municipality's authorized policymakers, the action of the subordinate may be attributable to the municipality if the authorized policymakers approved the decision and the basis for it. St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107, 120 (1988).

Due Process in Child Abuse Cases

Plaintiffs are guaranteed due process of law pursuant to the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment provides, in relevant part, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, cl. 1. Plaintiffs bring claims for violations of both substantive and procedural due process.

Substantive due process rights are those rights which are “fundamental” under the Constitution. Nicolas v. Pennsylvania State University, 227 F.3d 133, 139-141 (3d Cir. 2000). The United States Supreme Court has recognized a “fundamental liberty interest of natural parents in the care, custody, and management of their child” protected by the Fourteenth Amendment. Miller v. City of Philadelphia, 174 F.3d 368, 374 (3d Cir. 1999)(quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606 (1982)); see also Anspach v. City of Philadelphia, 503 F.3d 256, 261 (3d Cir. 2007).

“The touchstone of due process is the protection of the individual against arbitrary action of government.” Miller, 174 F.3d at 374 (internal quotations omitted). To incur liability, the objective character of the government action must be so egregious that it “shocks the conscience”. Miller, 174 F.3d at 375.

Specifically, the United States Court of Appeals for the Third Circuit has held that child welfare workers abridge an individual’s substantive due process rights where their actions “exceed both negligence and deliberate indifference, and reach a level of gross negligence or arbitrariness that indeed ‘shocks the conscience.’” Miller, 174 F.3d at 375-376. The Third Circuit, in explaining Miller, held that in order for a child welfare worker to be liable for removing a child from his parents upon suspicions of abuse, the worker must have “consciously disregarded a great risk that there had been no abuse.” Ziccardi v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir. 2002).

There may be cases in which a child is justifiably removed from the home, without violating due process, even where a later investigation reveals no abuse actually occurred. Croft v. Westmoreland County Children and Youth Services, 103 F.3d 1123, 1126 (3d Cir. 1997). The focus for due process purposes is “whether the information available to the defendants at the time would have created an objectively reasonable suspicion of abuse justifying the degree of interference” with the rights of parents. Croft, 103 F.3d at 1126. “Absent such reasonable grounds, governmental intrusions of this type are arbitrary abuses of power.” Id.

To state a Section 1983 claim for deprivation of procedural due process, plaintiffs must allege that: (1) they were deprived of an individual interest that is encompassed within the Fourteenth Amendment’s protection of life, liberty or property; and (2) the procedures available did not provide due process of law. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).

Regarding the first requirement, as discussed above, parents have a constitutionally cognizable liberty interest in the care, custody, and management of their children. Miller, 174 F.3d at 374. Regarding the procedures available, “the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at 373 (internal quotations omitted).

To determine the extent the procedures required, a court must balance several factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such an interest through the procedures used; (3) the probable value, if any, of additional or substitute procedural safeguards; and (4) the government’s interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. B.S. v. Somerset County, 704 F.3d 250, 271 (3d Cir. 2013) citing Matthews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Immunities for Government Officials

In Section 1983 claims for violations of procedural and substantive due process, state actors may assert an affirmative defense of absolute or qualified immunity.

Absolute immunity “defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity.” Imbler v. Pachtman, 424 U.S. 409, 419 n.13, 96 S.Ct. 984, 990 n.13, 47 L.Ed.2d 128, 137 n.19 (1976). The Supreme Court has held that judges[69], prosecutors[70], and witnesses[71], are entitled to absolute immunity when they perform judicial or quasi-judicial acts that are integral parts of the judicial process. See Ernst v. Child and Youth Services, 108 F.3d 486, 494 (3d Cir. 1997).

The Third Circuit Court of Appeals has held that child welfare workers are also entitled to absolute immunity “for their actions on behalf of the state in preparing for, initiating, and prosecuting dependency proceedings. Their immunity is broad enough to include the formulation and presentation of recommendations to the court in the course of such proceedings.” Ernst, 108 F.3d at 495.

However, the “investigative or administrative” actions of child welfare workers are not afforded absolute immunity. Rather, to determine whether a child welfare worker is entitled to absolute immunity, a court must consider the “what function their acts served”. B.S., 704 F.3d at 266.

Qualified immunity, on the other hand, applies to all public officials and must be analyzed in light of the circumstances of each particular case. Qualified immunity protects government officials from insubstantial claims in order to “shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565, 573 (2009).

In resolving a claim for qualified immunity, a court must decide: (1) whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of defendant’s alleged misconduct. Pearson, 555 U.S. at 232, 129 S.Ct. at 815-816, 172 L.Ed.2d at 573. A court may address either of these prongs first, based on the particular circumstances of the case at hand. Pearson, 555 U.S. at 236, 129 S.Ct. at 818, 172 L.Ed.2d at 576.

The constitutional right at issue is “clearly established” where the “contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Wilson v. Layne, 526 U.S. 603, 614-615, 119 S.Ct. 1692, 1699, 143 L.Ed.2d 818, 830 (1999) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531 (1987)).

A court must consider the state of the existing law at the time of the alleged violation and the circumstances confronting the official to determine whether a reasonable state actor could have believed his conduct was lawful. MFS Inc. v. Dilazaro, 771 F.Supp.2d 382, 449 (E.D.Pa. 2011)(internal quotation omitted).

The United States Court of Appeals for the Third Circuit has held that the determination of immunity should be made as early as possible in civil actions against government officials. Thomas v. Independence Township, 463 F.3d 285, 295 (3d Cir. 2006). Qualified immunity provides immunity from suit instead of merely providing a defense to liability. Pearson, 555 U.S. at 231, 129 S.Ct. at 815, 172 L.Ed.2d at 573.[72]

Pennsylvania Law Governing Dependency Proceedings

Many of plaintiffs’ allegations spring from alleged violations of Pennsylvania law regarding the process of removing a child from his parents. The applicable state-laws governing dependency proceedings are the Child Protective Services Law, 23 Pa.C.S.A. §§ 6301-6386, and the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6375.

Under 23 Pa.C.S.A. § 6315(a), a child may be taken into “protective custody” pursuant to a court order issued according to 42 Pa.C.S.A. § 6324. “Protective custody” is a temporary solution for a child at risk of abuse. 42 Pa.C.S.A. § 6324(1). Additionally, 23 Pa.C.S.A. § 6315 provides that upon obtaining an order for protective custody, an informal hearing must be held within 72 hours to determine whether to continue protective custody. See also 42 Pa.C.S.A. § 6332.

If at this informal hearing it is determined that protective custody should be continued, then CYS has 48 hours to file a petition with the court alleging that the child is a dependent child, which is a more long-term solution and requires hearings to determine whether the child is a “dependent child”. 23 Pa.C.S.A. § 6315(d).

A dependent child, in relevant part,

is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk.

42 Pa.C.S.A. § 6302.

A dependency hearing shall be held not later than ten days after the filing of the dependency petition.

42 Pa.C.S.A. § 6335(a).[73]

Intentional Infliction of Emotional Distress

Under Pennsylvania law, which follows the standard set forth in the Restatement (Second) of Torts, § 46, the tort of intentional infliction of emotional distress occurs where a person, whose acts constitute extreme or outrageous conduct, intentionally inflicts severe emotional distress on another person. Hunger v. Grand Central Sanitation, 447 Pa.Super. 575, 583-584, 670 A.2d 173, 177 (1996).

Conduct is considered “extreme or outrageous” where the conduct goes “beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized community.” Hunger, 447 Pa.Super. at 584, 670 A.2d at 177 (quoting Restatement (Second) of Torts, § 46 comment (d)); see also Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 191, 527 A.2d 988, 991 (1987). Plaintiffs who claim that they suffered emotional distress must substantiate these claims with competent medical evidence. Hunger, 447 Pa.Super. at 584-585, 670 A.2d at 177-178.

DISCUSSION

Count I

Plaintiffs concede that they did not produce sufficient evidence to support their claim in Count I. Accordingly, Count I is dismissed from plaintiffs’ Amended Complaint with prejudice.

Counts II-A and II-B

In Count II-A, plaintiffs allege that defendant County of Delaware violated plaintiffs’ substantive and procedural due process rights based on Delaware County’s (1) placement of B.D. with strangers pending the dependency hearing; (2) failure to timely schedule a shelter care hearing; and (3) making misrepresentations to obtain an ex parte order concerning custody.

Count II-B asserts a substantive and procedural due process claim against three of the individual Delaware County defendants based on their failure to seek a pre-deprivation hearing.

Each of these alleged substantive and procedural due process violations arise from defendant Gina Giancristoforo’s ex parte memorandum to Judge Maureen F. Fitzpatrick, which outlined the allegations of abuse against Mr. and Mrs. Dennis and requested a protective order of custody concerning B.D.

Specifically, the ex parte memorandum was used by CYS to obtain custody of B.D. without providing Mr. and Mrs. Dennis an opportunity to be heard at a pre-deprivation hearing. Additionally, because the memorandum stated that there were “no known family resources to care for the baby”, and that the Stevensons required a “full resource home study before the agency would recommend that the baby be moved to their care”, B.D. was placed in foster care with strangers.[74]

With respect to Count II-A, plaintiffs have failed to produce sufficient evidence that Delaware County violated plaintiffs’ substantive and procedural due process rights because they have failed to establish that the alleged misrepresentations made in the ex parte memorandum were part of a custom or policy of Delaware County.

Plaintiffs do not appear to contend, and have not provided any evidence establishing, that CYS’s misrepresentations in protective custody proceedings were so persistent and widespread as to practically have the force of law. See Connick, U.S. at, 131 S.Ct. at 1359, 179 L.Ed.2d at 426. In fact, plaintiffs have not provided any evidence that Delaware County employees made any misrepresentations outside the context of B.D.’s dependency proceedings.

Nor have plaintiffs established that the alleged misrepresentations made in the ex parte memorandum were made by a policy-making official. Defendant Giancristiforo, the author of the memorandum, was a case worker at CYS, and does not qualify as a policy-making official. Rather, the December 9, 2008 ex parte memorandum plainly indicates that it was approved by defendants McGettigan and Wertz.

Additionally, although defendants McGettigan and Wertz approved the ex parte memorandum, plaintiffs have failed to establish that their decisions were final and unreviewable. See Hill v. Borough of Kutztown, 455 F.3d at 245-246.

Defendant McGettigan was an intake supervisor at CYS who worked with defendant Giancristiforo in preparation of the December 9, 20008 ex parte memorandum. Defendant Wertz was an intake administrator at CYS and also signed her approval of the December 9, 2008 ex parte memorandum. Ms. Wertz had authority to review the decisions of both Ms. Giancristiforo and Ms. McGettigan.[75] Because Ms. McGettigan’s conduct was reviewable by Ms. Wertz, Ms. McGettigan does not qualify as a policy-making official.

Moreover, although Ms. Wertz’ could review the decisions of Ms. Giancristiforo and Ms. McGettigan, her approval of the ex parte memorandum was not a final, unreviewable decision. Rather, CYS’ legal department reviewed the ex parte memorandum before it was sent to Judge Fitzpatrick.[76]

Moreover, even if Ms. Wertz qualified as a policy-making official, plaintiffs have not established that Ms. Wertz was aware that any of the representations in the December 9, 2008 ex parte memorandum were potentially false. Rather, it was Ms. Giancristiforo and Ms. McGettigan -- not Ms. Wertz -- who interviewed Mr. and Mrs. Dennis and prepared the ex parte memorandum.[77]

Therefore, even if Ms. Wertz qualified as a policy-making official, plaintiffs have failed to establish that she had any role in the allegedly unconstitutional conduct involved in preparation of the ex parte memorandum.[78]

Accordingly, plaintiffs have failed to establish that Delaware County had a policy or custom of making misrepresentations to obtain an ex parte custody order.[79]

Additionally, while Delaware County had a policy of pursuing protective custody orders, without providing parents with a pre-deprivation hearing, the Third Circuit has held that initiating child custody proceedings by ex parte order is generally constitutional so long as a prompt post-deprivation hearing is held. Miller, 174 F.3d at 372 n.4.

Here, plaintiffs received a prompt post-deprivation hearing. Therefore, Delaware County’s failure to schedule a hearing prior to seeking custody of B.D. did not violate plaintiffs’ due process rights.

Likewise, even if Delaware County had a policy to always conduct a full home study of prospective foster care parents, such a policy does not shock the conscience. Completing a comprehensive review of potential caregivers enables CYS to assess whether the prospective caregivers will be able to protect the child. This seems particularly necessary when the prospective caregivers have not acknowledged that the accused parents may have abused the child.[80]

Therefore, Delaware County’s temporary placement of B.D. with strangers did not violate plaintiffs’ substantive due process rights.

For all of the foregoing reasons, the Delaware County defendants’ summary judgment motion is granted with respect to Count II-A.

Like the claim against the County of Delaware in Count II-A, plaintiffs have failed to establish that the individual defendants were required to schedule a pre-deprivation hearing as asserted in Count II-B. See Miller, 174 F.3d at 372 n.4.

Additionally, even if a pre-deprivation hearing were required, the individual defendants would be entitled to absolute immunity. See Ernst, 108 F.3d at 495, which held that child welfare workers are also entitled to absolute immunity “for their actions on behalf of the state in preparing for, initiating, and prosecuting dependency proceedings.”[81]

Therefore, the Delaware County defendants’ motion for summary judgment is granted with respect to Count II-B.

Counts III and IV

In Count III plaintiffs allege that Delaware County and Mary Germond violated their rights to federal procedural due process based on Ms. Germond’s failure to file a dependency petition within 48-hours of the December 11, 2008 post-deprivation hearing.[82]

Similarly, Count IV asserts that Delaware County, Patricia McGettigan, and Gina Giancristiforo violated plaintiffs’ federal procedural due process rights by failing to promptly schedule the dependency hearing and by failing to timely provide plaintiffs with discovery.

In this case, the right-to-detain hearing was held on December 11, 2008. However, contrary to the requirements of 23 Pa.C.S.A. § 6315, CYS did not file a dependency petition until December 29, 2008.

Likewise, pursuant to 42 Pa.C.S.A. § 6335(a) a dependency hearing is required to be held within 10 days following the filing of the dependency petition. In this case, the dependency hearing was originally scheduled for January 13, 2009, more than 10 days after the dependency petition was filed. Moreover, the dependency hearing did not ultimately commence until April 22, 2009, nearly four months after the dependency petition was filed.

However, although CYS failed to comply with Pennsylvania law by failing to file the dependency petition within 48 hours and failing to conduct a dependency hearing within 10 days of the filing of the dependency petition, plaintiffs have failed to establish that their procedural due process rights were violated.

In order to prevail on their procedural due process claims as alleged in Counts III and IV, plaintiffs must demonstrate actual damages resulting from the delay in CYS’ failure to file the dependency petition. Berman v. Young, 291 F.3d 976, 985 (7th Cir. 2002). Accordingly, plaintiffs must establish, “with some degree of probability, ” that a timely petition and hearing would have prevented the infringement on their familial rights. Id.

Here, plaintiffs have failed to establish that if CYS promptly filed a dependency petition, the dependency hearing, and ultimate adjudication, would have occurred any earlier.

Following the right-to-detain hearing on December 11, 2008, plaintiffs were notified that the dependency hearing was scheduled for January 13, 2009. Plaintiffs did not object to holding the dependency hearing at that time. Additionally, although the dependency petition was not filed within 48 hours of the right-to-detain hearing, it was filed more than 10 days in advance of the scheduled January 13, 2009 dependency hearing. Therefore, plaintiffs had adequate notice of the allegations leveled against them prior to the dependency hearing.

Plaintiffs requested a continuance of the January 13, 2009 hearing because Master McNulty had a conflict of interest. Further, plaintiffs requested a continuance of the February 20, 2009 hearing because counsel for plaintiffs was unavailable.[83]

Plaintiffs have not explained how this delay is attributable to Delaware County or the individual defendants. In fact, pursuant to 42 Pa.C.S.A., “the court shall fix a time for hearing thereon, which if the child is in detention or shelter care shall not be later than ten days after the filing of the petition.”[84]

Therefore, the Court of Common Pleas is responsible for scheduling the hearing within the designated time period.[85]

Clearly, the delay resulting from plaintiffs’ request for a continuance cannot constitute a procedural due process violation of the Delaware County defendants.[86]

Plaintiffs contend that defendants failed to provide discovery to plaintiffs in a timely manner prior to the dependency hearing. Specifically, plaintiffs contend that defendants delayed submitting the expert reports of defendant DeJong and Dr. Messam. Plaintiffs contend that they were forced to seek continuances of the dependency hearing because defendants failed to provide these medical reports.

However, the Delaware County defendants provided plaintiffs with the expert reports of defendant DeJong and Dr. Messam more than 10 days in advance of the April 22, 1999 dependency hearing, which was all that was required by Judge Coll.[87]

Even if the Delaware County defendants caused delay in providing plaintiffs with discovery in the dependency proceedings, plaintiffs’ claim would nevertheless fail. Regarding plaintiffs’ claim against Delaware County, plaintiffs have not established any evidence that Delaware County’s delay in providing discovery was part of custom of policy.

Moreover, the individual defendants would be entitled to absolute immunity because providing discovery during the course of dependency proceedings is “intimately associated with the judicial process in much the same way as are a prosecutor’s actions in representing the state in criminal prosecutions.” B.S. 704 F.3d at 266.

Therefore, plaintiffs have failed to establish that the Delaware County defendants’ failure to timely file the dependency petition, failure to promptly schedule the dependency hearing, and failure to timely provide discovery, violated plaintiffs’ federal procedural due process rights.

Therefore, the Delaware County defendants summary judgment motion is granted with respect to Count III and IV.

Count V

In Count V, plaintiffs assert a substantive due process claim against Delaware County based upon the refusal of CYS to provide Mrs. Dennis with greater visitation rights with B.D.

The Third Circuit has held that “a state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.” Croft v. Westmoreland County of Children and Youth Services, 103 F.3d 1123, 1126 (3d Cir. 1997). Accordingly, the state must have an “objectively reasonable suspicion of abuse” in order to justify interference with the rights of parents. Id.

Here, however Mrs. Dennis was accused of abusing B.D. by failing to protect B.D. from Mr. Dennis. Therefore, Delaware County was justified in limiting the visitation rights of Mrs. Dennis. See B.S., 704 F.3d 268, which held that “the standard of culpability necessary for a child welfare employee’s actions to shock the conscience must generally exceed both negligence and deliberate indifference”.

Plaintiffs have not submitted any evidence showing that Delaware County and CYS employees limited Mrs. Dennis visitation rights for malicious reasons. In fact, at one point during the course of the dependency proceedings Mrs. Dennis violated the terms of her visitation schedule by engaging with B.D. in the presence of Mrs. Stevenson, but unsupervised by CYS staff.[88]

Additionally, although Mrs. Dennis attended all required parenting courses and was recognized for her parenting skills, CYS did not obtain the report on Mrs. Dennis’ psychological evaluation until July 2009. Therefore, before that time CYS did not have all potentially relevant information when considering whether to revise Mrs. Dennis’ visitation schedule.[89]

Finally, the fact that Mrs. Dennis maintained her innocence is not an arbitrary or irrelevant factor for CYS to consider in assessing the appropriate amount of visitation for Mrs. Dennis. Mrs. Dennis was accused of abuse by omission. Therefore, her insistence that the injuries were not caused by abuse could cause concern that Mrs. Dennis would not keep B.D. away from Mr. Dennis in the event CYS permitted Mrs. Dennis to have unsupervised visitation.[90]

CYS was granted custody of B.D. pending the dependency hearing and had the discretion to determine Mrs. Dennis’ visitation rights. Plaintiffs have failed to establish that limiting Mrs. Dennis’ visitation rights to weekly supervised visits “shocks the conscience”. Accordingly, the Delaware County defendants’ summary judgment motion is granted with respect to Count V.

Count VI

Plaintiffs concede that they did not produce sufficient evidence to support their claim in Count VI. Accordingly, Count VI is dismissed from plaintiffs’ Amended Complaint with prejudice.

Count VII

In Count VII plaintiffs have asserted a substantive due process against Dr. DeJong based on purported misrepresentations he made regarding his medical findings.[91] Plaintiffs allege that Dr. DeJong misrepresented B.D.’s injuries to support false allegations of child abuse.

However, plaintiffs substantive due process claim fails because plaintiffs have not established that Dr. DeJong was acting under the color of state law when he allegedly misrepresented B.D.’s medical conditions.

In order for a private actor to be transformed into a state actor, a court must consider “whether the function performed has been traditionally the exclusive prerogative of the State.” Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L.Ed.2d 418, 428 (1982)(internal quotations omitted)(emphasis in original).

A function serving the public, and even receipt of public funds, are not enough to make a private entity a state actor. Groman v. Township of Manalapan, 47 F.3d 628, 640 (3d Cir. 1995). Rather, “the interdependence between the state and private actor must be pronounced before the law will transform the private actor into a state actor.” Id. at 641.

Plaintiffs contend that Dr. DeJong is a state actor because he serves as the medical director of the Child Advocacy Center of Delaware (“CACD”) at duPont hospital. CACD receives substantial funding from the state of Delaware and “functions as an agency and plays a pivotal and critical role in ensuring that the state’s response to allegations of child abuse occurs as intended.”[92]

However, Dr. DeJong did not advise CYS or law enforcement personnel concerning the condition of B.D. as part of his role as the medical director of CACD. In fact, B.D. was never referred to CACD. Nor did CACD refer B.D. to Dr. DeJong.[93]

Instead, Dr. DeJong acted as a consulting physician, pursuant to his duties as director of the Child at Risk Evaluation (“CARE”) team at duPont hospital. Plaintiffs have not provided sufficient evidence that Dr. DeJong’s actions as an employee of duPont hospital constitute actions under the color of state law for purposes of § 1983.

Plaintiffs contend that defendant McGettigan’s request that Dr. DeJong contact the police to encourage them to intervene on behalf of B.D. converts him into a state actor for purposes of section 1983.

However, plaintiffs have not produced any evidence that Dr. DeJong’s actions or opinions concerning B.D. were dictated by the state. Accordingly, plaintiffs have failed to establish that Dr. DeJong acted under the color of state law. See Groman, 47 F.3d at 641.[94]

Even if plaintiffs had established that Dr. DeJong acted under the color of state law, their substantive due process claim would nevertheless fail because plaintiffs have failed to show that defendant DeJong’s conduct shocked the conscience.

Plaintiffs claim against Dr. DeJong is based on the following misrepresentations he allegedly made to Officer James Collins of the Chester County, Pennsylvania, Police Department and CYS: (a) that B.D. was on a ventilator when admitted to duPont hospital; (b) that B.D.’s rib fractures were two to four weeks old (to correspond to his assertion that the red marks on B.D. were traumatic bruises); (c) that B.D. had a significant skull fracture; (d) the timing of B.D.’s subdural hematoma blood collection (to falsely rule out birth trauma as a cause); and (e) the statements Dr. DeJong attributed to Mrs. Dennis.

First, concerning Dr. DeJong’s alleged misrepresentation that B.D. was on a ventilator, the record reflects that when B.D. was admitted to duPont Hospital for Children he required assisted ventilation, even if he were not on a traditional ventilator. Moreoever, when B.D. underwent a CT scan and MRI, he was placed on a ventilator. Therefore, Dr. DeJong’s assertion that B.D. was on a ventilator does not shock the conscience.

Regarding Dr. DeJong’s alleged misrepresentations concerning the age of B.D.’s bruised ribs, the existence of a skull fracture and the timing of B.D.’s subdural hematoma blood collection, plaintiffs have likewise failed to establish that Dr. DeJong’s opinions on these matters shock the conscience.

While plaintiffs have provided expert opinions which disagree with Dr. DeJong’s assessments concerning the extent, duration and cause of B.D.’s injuries, plaintiffs have not provided any evidence that Dr. DeJong’s opinions were negligent, much less that they shocked the conscience.

A plaintiff alleging constitutional violations based on inadequate or erroneous medical treatment must submit medical evidence to support his or her claim. See Anderson v. Folino, 2013 U.S.Dist. LEXIS 23193 at *25 (W.D.Pa. Jan. 23, 2013). Here, although plaintiffs have submitted medical evidence that Dr. DeJong’s opinions regarding B.D. were possibly erroneous, without an expert opinion that Dr. DeJong’s opinions were grossly negligent, plaintiffs cannot succeed on their substantive due process claim. See Billups v. Penn State Milton S. Hershey, 2012 U.S.Dist. LEXIS 56414 at *25 (W.D.Pa. April 23, 2012).

Billups held that plaintiffs failed to state a claim against the doctors who opined that a child had been abused because “some reasonable and articulable evidence” existed giving rise to a suspicion of abuse, and the “conscience-shocking standard” requires a showing which exceeds “both negligence and deliberate indifference.” Id.

Multiple doctors opined that B.D.’s injuries resulted from abuse. These opinions, including Dr. DeJong’s, were based on reasonable and articulable evidence. Therefore, plaintiffs have failed to establish that Dr. DeJong’s representations concerning B.D.’s medical conditions shocked the conscience.

Finally, plaintiffs have failed to provide evidence that Dr. DeJong misrepresented the conversation he had with Mrs. Dennis. In Dr. DeJong’s evaluation report of B.D., he indicates that Mrs. Dennis told him that B.D. was well until November 20, 2008. Dr. DeJong further reports that Mrs. Dennis told him that around 7:00 o’clock p.m. on that date Mr. Dennis went upstairs alone with B.D. and that B.D. suddenly stopped crying and that when Mr. Dennis called her upstairs, B.D.’s arm was limp and mouth was drooping.[95]

Mrs. Dennis does not dispute that she told Dr. DeJong that B.D.’s arm went limp and that B.D.’s mouth was drooping. However, she contends that she told him that she did not observe those symptoms until later in the evening.[96]

However, even if Dr. DeJong inaccurately reported his interview with Mrs. Dennis, the purported misrepresentations do not shock the conscience. Rather, even Mrs. Dennis acknowledged that the purported inaccuracies within Dr. DeJong’s evaluation of B.D. would not necessarily show malicious intent, but could have occurred “if he’s not a good reporter.”[97]

Therefore, even if plaintiffs had established that Dr. DeJong was acting under color of state law, Dr. DeJong would nevertheless be entitled to summary judgment. Accordingly, the motion for summary judgment of defendant Dr. DeJong is granted with respect to Count VII.

Count VIII

In Count VIII, plaintiffs assert a substantive due process claim against Delaware County based on its failure to train and supervise caseworkers, supervisors and administrators regarding filing dependency petitions, scheduling dependency trials and ex parte communications with the court.

In their opposition to Delaware County’s motion for summary judgment, plaintiffs indicate that the focus of Count VIII is Delaware County’s alleged failure train caseworkers, supervisors and administrators to conduct a pre-deprivation hearing when CYS seeks custody of a child in a non-emergency situation. Further, plaintiffs contend that Delaware County failed to train CYS employees to file dependency petitions in a timely manner.

However, as discussed above, initiating child custody proceedings by ex parte order is generally constitutional so long as a prompt post-deprivation hearing is held. Miller, 174 F.3d at 372 n.4. Plaintiffs have not cited to any authority casting doubt on the procedures set forth in the Child Protective Services Law, 23 Pa.C.S.A. §§ 6301-6386, and the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6375.[98]

Therefore, because a prompt post-deprivation hearing was held, Delaware County is not liable for failing to train its employees to conduct a pre-deprivation hearing when seeking a protective custody order.[99]

Regarding plaintiffs’ contention that Delaware County failed to properly train its employees to file timely dependency petitions, plaintiffs have failed to establish that Delaware County had a policy of encouraging dependency petitions to be filed late.

In this case, the dependency petition was not filed within the requisite 72 hours. However, plaintiffs have not established that such delay is commonplace or resulted from inadequate training.

Defendant Germond acknowledges that, despite her signature appearing on all dependency petitions, she does not personally review the content of the petitions or have a role in their filing. However, plaintiffs have not produced any evidence that the dependency petition filed on behalf of B.D., or any other dependency petition, was filed in an untimely manner because of inadequate training or supervision.

Therefore, the motion for summary judgment of defendant County of Delaware is granted with respect to Count VIII.

Count IX

Plaintiffs acknowledge that have not identified Dr. Doe or uncovered any evidence supporting their Pennsylvania state-law negligence claim against him. Accordingly, on April 18, 2013 at oral argument, plaintiffs withdrew this claim. Therefore, in the Order accompanying this Opinion I have formalized plaintiffs’ oral withdrawal of this claim by dismissing Count IX from plaintiffs’ Amended Complaint with prejudice.

Count X

In Count X, plaintiffs allege a Pennsylvania state-law claim for intentional infliction of emotional distress against defendant Dr. DeJong. Plaintiffs’ claim for intentional infliction of emotion distress is based on the same purported misrepresentations which provide the basis for plaintiffs’ substantive due process claim against Dr. DeJong, asserted in Count VII.

Although the standard for a substantive due process violation differs from intentional infliction of emotional distress, in this case, the analysis is the same. For the same reasons Dr. DeJong’s alleged misrepresentations do not “shock the conscience”, plaintiffs have failed to establish that Dr. DeJong’s conduct was extreme and outrageous. See Breakwell v. Allegheny County, 2009 U.S.Dist. LEXIS 91547 at *20 (W.D.Pa. Aug. 24, 2009).

In Breakwell, the court concluded that allegations of substantive due process which fail to “shock the conscience”, likewise cannot be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” to support an intentional infliction of emotional distress claim. Id.

Therefore, defendant Dr. DeJong’s motion for summary judgment is granted with respect to Count X.

CONCLUSION

For all of the forgoing reasons, the Delaware County defendants’ motion for summary judgment is granted. Likewise, Dr. DeJong’s summary judgment motion is granted. Accordingly, all remaining claims are dismissed from plaintiffs’ Amended Complaint. Finally, plaintiffs’ motion for partial summary judgment is denied.

ORDER

NOW, this 14th day of June, 2013, upon consideration of the following documents:

(1) Notice of Motion filed by plaintiffs on December 16, 2012 (Document 92)[1], together with

(A) Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for Partial Summary Judgment on Counts II-A, II-B, III, IV and VII of Plaintiffs’ Amended Complaint (Document 92-1);
(B) Plaintiffs’ Statement of Material Facts in Support of Plaintiffs’ Motion for Partial Summary Judgment (Document 92-2);
(C) Exhibits 1 through 125 supporting Plaintiffs’ Statement of Material Facts in Support of Plaintiffs’ Motion for Partial Summary Judgment filed December 20, 2012 (Document 96);
(D) Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo’s Response in Opposition to Plaintiffs’ Motion for Summary Judgment, which response was filed December 27, 2012 (Document 98);
(E) Memorandum of Law in Opposition to Plaintiffs’ Motion for Summary Judgment Against Defendants, County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo, which memorandum was filed December 27, 2012 (Document 98);
(F) Defendants Delaware County, Mary Germond, Meta Wertz, Beth [Prodoehl], Patricia McGettigan and Gina Giancristiforo’s Response to Plaintiffs’ Statement of Material Facts in Support of Plaintiffs’ Motion for Partial Summary Judgment, which response was filed December 27, 2012 (Document 99)
(G) Response of Defendant, Dr. Allan R. DeJong, to Plaintiffs’ Statement of Undisputed Facts in Support of Their Motion for Partial Summary Judgment, which response was filed January 9, 2013 (Document 104);
(H) Response in Opposition of Defendant, Dr. Allan R. DeJong, to Plaintiffs’ Motion for Partial Summary Judgment, which response was filed January 9, 2013 (Document 104); and
(I) Memorandum of Law in Support of Opposition of Defendant, Dr. Allan R. DeJong, to Plaintiffs’ Motion for Partial Summary Judgment, which memorandum was filed January 9, 2013 (Document 104);

(2) Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo’s Motion for Summary Judgment filed December 17, 2012 (Document 93), together with

(A) Memorandum of Law in Support of Motion for Summary Judgment of Defendants, County of Delaware on Behalf of Its Council, Mary Germond, Meta Wertz, Beth [Prodoehl], Patricia McGettigan and Gina Giancristiforo;
(B) Statement of Undisputed Material Facts in Support of Summary Judgment Motion of Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo (Document 93-1);
(C) Exhibits 1 through 34 supporting the Statement of Undisputed Material Facts in Support of Summary Judgment Motion of Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo;
(D) Plaintiffs’ Memorandum of Law in Opposition to Motion to Dismiss of Defendants Delaware County, Mary Germond, Meta Wertz, Patricia McGettigan, Gina Giancristiforo and Beth Prodoehl, which memorandum was filed on January 9, 2013 (Document 103);
(E) Plaintiffs’ Counterstatement of Facts in Opposition to Statement of Undiputed Material Facts of Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo, which counter-statement of facts was filed January 9, 2013 (Document 103);
(F) Exhibits 1 through 8 to Plaintiffs’ Counterstatement of Facts in Opposition to Statement of Undiputed Material Facts of Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo (Documents 103-1 through 103-8); and
(G) Reply Brief of Defendants Delaware County, Mary Germond, Meta Wertz, Patricia McGettigan, Gina Giancristiforo and Beth Prodoehl to Plaintiffs’ Memorandum of Law in Opposition to the County Defendants’ Motion for Summary Judgment, which reply brief was filed January 30, 2013 (Document 108); and

(3) Motion of Defendant, Allan R. Dejong, M.D., to Dismiss Plaintiffs’ Amended Complaint Pursuant to Federal Rule of Civil Procedure 56 with Supporting Memorandum, which motion in the nature of a motion for summary judgment was filed December 17, 2012 (Document 95), together with

(A) Exhibits A through Y in support of motion for summary judgment;
(B) Untitled brief in opposition to defendant Allan R. DeJong, M.D.’s motion for summary judgment, which brief was filed by plaintiffs on January 9, 2013 (Document 102)
(C) Exhibits 1 through 15 to plaintiffs’ brief in opposition (Documents 102-1 through 102-15);
(D) Supplemental Exhibits A and B in support of motion for summary judgment, which exhibits were filed by defendant Dr. DeJong on April 24, 2013 (Documents 127-3 and 127-4);
(E) Plaintiffs’ Response to Defendant DeJong’s Motion to Supplement the Record (Doc. 127), which response was filed April 30, 2013 (Document 132); and
(F) Plaintiffs’ Memorandum of Law in Response to Defendant DeJong’s Motion to Supplement the Record (Doc. 127), which memorandum was filed April 30, 2013 (Document 133);

after oral argument held on April 18, 2013; and for the reasons expressed in the accompanying Opinion; it appearing that plaintiffs have consented to the dismissal of Counts I, VI and VII against defendant County of Delaware, and to the dismissal of Count IX against defendant Dr. Doe,

IT IS ORDERED that Counts I, VI and VII against defendant County of Delaware are dismissed from the Amended Complaint with prejudice.

IT IS FURTHER ORDERED that Count IX against defendant Dr. Doe is dismissed from the Amended Complaint with prejudice.

IT IS FURTHER ORDERED that Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo’s Motion for Summary Judgment is granted.

IT IS FURTHER ORDERED that judgment is entered in favor of defendant County of Delaware and against plaintiffs Reginald Dennis, Renee Dennis and B.D., a minor, on Counts II-A, III, IV, V and VIII of plaintiffs’ Amended Complaint.

IT IS FURTHER ORDERED that judgment is entered in favor of defendant Mary Germond and against plaintiffs Reginald Dennis, Renee Dennis and B.D., a minor, on Count III of plaintiffs’ Amended Complaint.

IT IS FURTHER ORDERED that judgment is entered in favor of defendant Meta Wertz and against plaintiffs Reginald Dennis, Renee Dennis and B.D., a minor, on Count II-B of plaintiffs’ Amended Complaint.

IT IS FURTHER ORDERED that Beth Prodoehl is dismissed as a defendant from plaintiffs’ Amended Complaint.[2]

IT IS FURTHER ORDERED that judgment is entered in favor of defendant Patricia McGettigan and against plaintiffs Reginald Dennis, Renee Dennis and B.D., a minor, on Counts II-B and IV of plaintiffs’ Amended Complaint.

IT IS FURTHER ORDERED that judgment is entered in favor of defendant Gina Giancristiforo and against plaintiffs Reginald Dennis, Renee Dennis and B.D., a minor, on Counts II-B and IV of plaintiffs’ Amended Complaint.

IT IS FURTHER ORDERED that the Motion of Defendant, Allan R. Dejong, M.D., to Dismiss Plaintiffs’ Amended Complaint Pursuant to Federal Rule of Civil Procedure 56 with Supporting Memorandum, in the nature of a motion for summary judgment, is granted.

IT IS FURTHER ORDERED that judgment is entered in favor of defendant Allan R. DeJong, M.D. and against plaintiffs Reginald Dennis, Renee Dennis and B.D., a minor, on Counts VII and X of plaintiffs’ Amended Complaint.

IT IS FURTHER ORDERED that plaintiffs’ motion for partial summary judgment entitled “Notice of Motion” is denied.

IT IS FURTHER ORDERED that the Clerk of Court mark this case closed for statistical purposes.[3]


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.