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Bower v. Lawrence County Children & Youth Servs.

United States District Court, W.D. Pennsylvania

August 12, 2013

EILEEN A. BOWER, Plaintiff,
v.
LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES, EVA LIGHTEL Lawrence County Children and Youth Services Caseworker, AND JAMESON HEALTH SYSTEMS, Defendants

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[Copyrighted Material Omitted]

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For EILEEN A. BOWER, Plaintiff: Stanley T. Booker, Law Firm of Stanley T. Booker, New Castle, PA.

For LAWRENCE COUNTY CHILDREN AND YOUTH SERVICES, EVA LIGHTEL, Lawrence County Children and Youth Services Caseworker, and, Defendants: Marie Milie Jones, LEAD ATTORNEY, JonesPassodelis, PLLC, Pittsburgh, PA.

For JAMESON HEALTH SYSTEMS, Defendant: John C. Conti, LEAD ATTORNEY, Dickie, McCamey & Chilcote, Pittsburgh, PA; Richard J. Kabbert, Dickie McCamey & Chilcote PC, Pittsburgh, PA.

OPINION

Terrence F. McVerry, United States District Judge.

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MEMORANDUM OPINION AND ORDER OF COURT

Pending before the Court are the MOTION FOR SUMMARY JUDGMENT (ECF No. 41) filed by Defendant Jameson Health Systems (" Jameson" or " Hospital" ) and the MOTION FOR SUMMARY JUDGMENT (ECF No. 46) filed by Defendants Lawrence County Children and Youth Services (" LCCYS" ) and caseworker Eva Lightel (" Lightel" ), with briefs in support. Plaintiff Eileen Bower (" Bower" ) has filed responses in opposition to the motions and Defendants have filed reply briefs. The parties have also thoroughly developed their respective positions as to the Concise Statements of Material Facts (" CSMF" ) and have submitted voluminous appendices. The motions are ripe for disposition.

Factual and Procedural Background

This case presents difficult questions regarding the balance between a mother's right to keep her newborn baby and the duties of the government, an individual case worker, and a hospital to report and address suspected child abuse. The material facts are essentially undisputed. Plaintiff Bower contends that Defendants wrongfully deprived her of custody of her newborn baby (" Baby Brandon" ) for seventy-five (75) days due to a " false positive" drug test caused by having eaten poppy seeds.

In July 2009, Bower was a twenty years old resident of Lawrence County, Pennsylvania. On July 12, 2009 at approximately 7:00 p.m., Bower hosted a barbecue dinner at her new home. As part of the meal, Bower consumed linguini salad with McCormick Foods Supreme Pasta salad dressing which contained poppy seeds. Bower used two bottles of the salad dressing with one pound of pasta. Bower Deposition at 127. Shortly after dinner, Bower went into labor. During her pregnancy, Bower had received necessary and appropriate prenatal care and had passed every drug screen that had been administered, including a drug test taken approximately three weeks earlier, on June 22, 2009. At 9:20 p.m., Bower was admitted to Jameson for the birth of her second child.

At that time, Jameson had a written drug testing policy (the " Policy" ) by which all obstetrical patients were administered a urine drug screen in order to identify newborns who may demonstrate symptoms of drug withdrawal and require special observation and treatment. Jameson Exhibit L. The policy had been drafted by Jan Peterson, manager of social services for Jameson. LCCYS was not involved in enacting the policy.[1] The hospital laboratory detection

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level for opiate metabolites is 300 nanograms/mL, which is far lower than the 2000 nanograms/mL level set by the federal government for federal workplace testing programs. Jameson's Policy further required that if a mother tested positive, a drug test be performed on the newborn's urine and meconium. The Policy required Jameson to notify its social service department whenever a maternity patient's initial drug screen was positive. In July 2009, every initial positive drug screen result was reported by Jameson's social services staff to LCCYS.[2] Jameson Exhibit K. In addition, positive results on the initial urine screen would be sent for a confirmatory test.

At 10:56 p.m. on July 12, 2009, Bower provided a urine sample. She was not told that the sample would be used to conduct a drug screen. Nobody asked Bower whether she had eaten any foods that might affect the test results. Plaintiff's initial urine screen came back " present" for morphine. A concentration was not listed.

Baby Brandon was born shortly after midnight on July 13, 2009. On July 13, 2009, Jameson forwarded the urine sample to Quest Diagnostics (" Quest" ) for a confirmation test (without notice to Bower).

On July 14, 2009, Jameson reported the positive urine screen result to LCCYS. The LCCYS Intake Screening Form noted that " Baby tested negative," although the results of a confirmatory meconium test would not be known for a " few weeks." [3] LCCYS Exhibit E. The Form had a section for " Safety Threats" which noted that there was no present or impending danger. Later that day, a social worker for Jameson advised Bower of the positive drug screen and that the result had been reported to LCCYS. Bower testified: " She just said that its their duties [sic] to inform [LCCYS] and that, you know, whatever happens from there, they have no control over." Bower Deposition at 161. Bower was distraught; she denied any substance abuse; and she tried to find out what had caused the false positive result. A nurse asked whether she had eaten poppy seeds, and Bower researched the ingredients of the Supreme Pasta dressing on her cell phone.

LCCYS caseworker Lightel became involved on July 14, 2009. Lightel's notes reflect a conversation with Barb Smolnik, a social worker at Jameson, who informed Lightel that there was " no explanation for the Opiates" and advised that the test did not appear to be a " false positive." [4] LCCYS Exhibit F.

In July 2009, the policy of LCCYS was to seek an ex parte Order granting LCCYS custody of any newborn whose mother had tested positive for an illegal substance.[5] Lightel Deposition at 26-27. As Lightel testified, it was not necessary for a caseworker to perform any investigation regarding the positive test: " I have the hospital saying she tested positive and that was enough for me." Id. at 16. Pursuant to LCCYS policy, the positive drug screen was the only information needed for the caseworker " to get an ex parte order to take the child." Id. This was LCCYS policy for all intake workers at that time. Id. at 27. Lightel was following LCCYS policy in this case. Id. The Director of

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LCCYS is responsible for the development of the policy. Copper Deposition at 35. Various Jameson staffers were generally aware of the LCCYS policy but there is no evidence in the record that Jameson had any role in the development or implementation of the LCCYS policy.

On the morning of July 15, 2009, Lightel decided to obtain an ex parte Order to take Baby Brandon into custody. The LCCYS action was based solely on the positive urine screen as reported by phone from Jameson.[6] Prior to seeking protective custody, Lightel did not interview Bower or her family members; did not interview Bower's treating physician, Dr. Bassaly; did not attempt to obtain copies of Bower's medical records or prior drug tests; never obtained the drug test on Baby Brandon; and never inspected Bower's home or investigated whether she had the necessary items to care for an infant. No services or options were offered as an alternative to removal of the baby. In petitioning for the ex parte order of custody, Lightel alleged that Bower had tested positive for opiates and therefore Baby Brandon was without proper parental care. LCCYS contended that to allow Baby Brandon to return home with Bower would be contrary to his welfare because he had been exposed to drugs.

On July 15, 2009, Judge John W. Hodge of the Court of Common Pleas of Lawrence County issued an ex parte custody Order. The Order stated, inter alia: " Although no services were offered by the Lawrence County Children and Youth Agency to prevent removal of the child from the home, this level of effort was reasonable due to the emergency nature of the situation, safety considerations and circumstances of the family." Bower Exhibit L.

After obtaining the ex parte Order, Lightel spoke again to Smolnik, who related Bower's claim that she had consumed poppy seeds shortly before she went into labor. Lightel's notes reflect that the Hospital was " doing a confirmatory test and the lab work should be back on Thursday or Friday" (July 16 or 17). LCCYS Exhibit F. These phone calls with Smolnik were Lightel's only contacts with anyone from Jameson about the case. Lightel Deposition at 17.

Later on July 15, Lightel spoke (for the first time) to Bower. Bower told Lightel that ingesting poppy seeds may have caused the positive test and that there was " a rush" on the confirmatory drug test. Bower had a Walmart receipt for the poppy seed salad dressing, which she showed to the nurse, her attorney, and LCCYS. Bower also provided Lightel with information about false positive tests due to poppy seeds that had been printed out by the nursing staff. Jameson social worker Terry Perkins informed Lightel that the hospital staff " somewhat believed" Bower's explanation. Perkins Deposition at 34-35. Lightel did not attempt to investigate Bower's explanation. Lightel told Bower that LCCYS had already obtained an ex parte Order to take custody of Baby Brandon and that there would be a hearing the next day.

On July 15, 2009, Quest issued a report on the initial urine screen which indicated that morphine was " present" but at such a low concentration that the reference range was " NONE DETECTED." LCCYS Exhibit C. The detection limit of the Quest report was 100 ng/mL. It is unclear when

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the Quest report was provided to LCCYS, although Lightel's notes reflect that the confirmatory test results would " come back tomorrow" (July 16). LCCYS Exhibit F.

Bower remained in the hospital because she was distraught. Baby Brandon also remained in the hospital. On July 16, 2009, a seventy-two hour hearing required by the Pennsylvania Child Protective Services law commenced before Master Susan Papa. Bower was present at the hearing along with counsel, Deborah Shaw. Bower was unwilling to accept that LCCYS was going to take her son and put him in foster care. Bower Deposition at 174. Bower testified that during a recess, the Master came into a back room and yelled at her to " buck up, get a backbone, and stop crying." Bower Deposition at 176-77. Bower and her attorney then decided to waive the hearing ...


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