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Plaintiff v. Berks County Children and Youth Services

United States District Court, E.D. Pennsylvania

September 18, 2014



LAWRENCE F. STENGEL, District Judge.

Arnulfo Silva, plaintiff, brings this action under 18 U.S.C. § 1983 charging Berks County, Berks County Children and Youth Services (CYS) and various CYS employees with the arbitrary deprivation of his right to care, custody and management of his daughter. Currently pending is defendants' motion to dismiss. I will grant the motion and dismiss the case with prejudice.


In October 2009, eight month old N.S. suffered a severe head and neck injury while in the sole care of her mother, Christina Silva. Compl. ¶ 12; Opinion of Superior Court ("Opinion"), [1] Compl. Ex. F, 2. The infant's injuries were severe[2] requiring surgery to remove a part of her skull. Compl. ¶ 14. The infant's doctors determined that the injuries were not accidental, and CYS concluded that Mrs. Silva was the perpetrator. Opinion at 2. Following the incident, Mrs. Silva and Mr. Silva signed a voluntary placement agreement, [3] and the Berks County Court of Common Pleas adjudicated N.S. a dependent child[4] and transferred custody of N.S. to CYS. Compl. ¶¶ 15, 17. Following the court order, Mr. and Mrs. Silva separated and eventually divorced. Id . ¶ 19.

Throughout the dependency, CYS found that Mr. Silva was cooperative and demonstrated that he could care for N.S. Id . ¶ 21. By order dated June 1, 2010, N.S. was returned to Mr. Silva's custody, but Mrs. Silva could only have supervised visitation. Id . ¶ 22; Opinion at 3. On October 28, 2010, the Court of Common Pleas ended the dependency. Compl. ¶ 23. On November 16, 2010, CYS learned that Mr. Silva, N.S. and Mrs. Silva were together without supervision at a grocery store. Id . ¶ 27. The parties dispute whether the meeting was planned or a chance encounter. Id . ¶¶ 28, 29. It is also disputed whether Mr. Silva had notice that Mrs. Silva's visitation rights were restricted following the termination of dependency. Id . ¶¶ 25, 26.

On November 30, 2010, Defendant Richelle Smith, a CYS caseworker, filed a dependency petition in the Berks County Court of Common Pleas citing violations of the safety plan. Id . ¶ 31. CYS removed N.S. from Mr. Silva's custody the same day. Id . On May 6, 2011, Defendant Jennifer Kemmerer, the caseworker assigned to the Silva family, prepared a service plan which included the objective of placing N.S. for adoption. Id . ¶¶ 10, 45. Defendant Donna Baumener, Ms. Kemmerer's supervisor, approved and signed the plan on May 10, 2011. Id . ¶ 45. On June 27, 2011, [5] CYS filed a petition for involuntary termination[6]of Mr. and Mrs. Silva's parental rights. Id . ¶ 33. On September 19, 2011, Ms. Kemmerer filed a Petition for Permanency Review with the state court which recommended adoption as the primary and concurrent goal. Id. at 35. The complaint also alleges that defendants George Kovarie and Barabara Jakubek, CYS supervisors, are liable for instituting and enforcing policies which caused the interference with Mr. Silva's rights.

The Court of Common Pleas held a hearing on the termination petition on January 30, 2012. Compl. ¶ 36. During the hearing, Ms. Kemmerer testified that Mr. Silva participated in a psychiatric evaluation. She reported the psychiatrist's evaluation:

"Dr. Rotenberg had noted that Arnulfo is very primitive and very simplistic. He was diagnosed with borderline intelligence and personality disorder not otherwise specified. Dr. Rotenberg also went on to state that he believes Arnulfo states what Arnulfo believes people in authority want to hear. And he stated, quote, it is hard to see how this man who lives on the edge, is here as an illegal, gets along with his street smarts, but that has very little capacity in the way of planning can take care of his child, end quote"

N.T., Compl. Ex. B, 28: 14 - 23. She also testified that she didn't trust Mr. Silva appreciated the danger which Mrs. Silva posed to N.S., and she was concerned that Mr. Silva would allow Mrs. Silva to see N.S. again. Id . 37:10-20. She also cited other concerns which led her to question Mr. Silva's ability to care for N.S. by himself: 1.) he would not change N.S.'s diaper without prompting; 2.) he played "mean" with N.S.; 3.) he did not know N.S.'s clothing size; and 4.) he was a sedentary parent. Compl. ¶ 37.

The Court of Common Pleas terminated Mr. and Mrs. Silva's rights with regard ot N.S. by order dated February 2, 2012. Id . ¶ 41. On December 10, 2012, the Superior Court reversed the termination decree as to Mr. Silva only. Id . ¶ 44. The court noted that the condition causing the dependency of N.S. was the November 16 grocery store encounter. According to the Superior Court, one violation of the safety plan did not fulfill the elements of 23 Pa.C.S. § 2511(a)(5)[7] because there was no evidence that Mr. Silva would again allow Mrs. Silva to see N.S. without supervision. Opinion at 18-19. Therefore, the Superior Court held that the Court of Common Pleas "abused its discretion in finding that CYS met its burden" of proving that Mr. Silva would not remedy the condition which led to N.S.'s placement with CYS. 23 Pa.C.S. § 2511(a); Opinion at 19. On the same day the Superior Court filed its decision, Ms. Kemmerer filed a petition for permanency review with the trial court. The petition listed adoption as the primary goal. Id . Compl. ¶ 46. As of the filing of this complaint, CYS retained custody of N.S. who remained in dependent status. Id. at ¶ 47, 49.


A complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This statement must "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). A complaint need not contain detailed factual allegations, but a plaintiff must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to show entitlement to relief as prescribed by Rule 8(a)(2). Id. at 1965; Evancho v. Fisher , 423 F.3d 347, 350 (3d Cir. 2005). A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

In deciding a motion to dismiss under Rule 12(b)(6), I may consider "the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Ben.Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir. 1993). I must accept as true all of the factual allegations in the complaint, Erickson v. Pardus , 551 U.S. 89 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp. , 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff. Kanter v. Barella , 489 F.3d 170, 177 (3d Cir. 2007). However, I am not "compelled to accept unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation." Baraka v. McGreevey , 481 F.3d 187, 195 (3d Cir. 2007) (internal quotation marks and citations omitted). If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiffs' claim is "plausible on its face, " a complaint will survive a motion to dismiss. Bell Atlantic Corp., 127 S.Ct. at 1965, 1974; Victaulic Co. v. Tieman , 499 F.3d 227, 234-35 (3d Cir. 2007).


The one count complaint alleges that defendants deprived Mr. Silva of his liberty without due process of law. The Due Process Clause of the Fourteenth Amendment includes both procedural and substantive elements. Cnty. of Sacramento v. Lewis , 523 U.S. 833, 845-46 (1998) (citation omitted) ("[T]he touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness or in the exercise of power without any reasonable justification...."). Mr. Silva's complaint does not specify whether he is pursuing a procedural due process or a substantive due process claim. However, his arguments in response to plaintiff's motion to dismiss clarify that he is proceeding under a substantive due process theory only.[8]

"To establish a substantive due process claim, a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience." Chainey v. Street , 523 F.3d 200, 219 (3d Cir. 2008) (citing United Artists Theatre Circuit, Inc. v. Twp. of Warrington , 316 F.3d 392, 400-2 (3d Cir.2003)). It is not disputed that Mr. Silva has a constitutionally protected right to the custody and care of his child. Croft v. Westmoreland County Children and Youth Services , 103 F.3d 1223, 1225 (3d Cir. 1997) (citing Lehr v. Robertson , 463 U.S. 248, 258 (1983)). Mr. Silva claims, and defendants do not deny, that defendants interfered with that interest when they petitioned to terminate his parental rights. The issue is whether that interference was unconstitutional. In other words, did the caseworkers' conduct shock the conscience?

In the context of a suit against CYS, the Third Circuit has defined the type of conduct which shocks the conscience. To survive this motion to dismiss, Mr. Silva must plausibly plead that defendants had "no reasonable and articulable evidence giving rise to a reasonable suspicion that [N.S. was]... in imminent danger of abuse." See Croft, 103 F.3d at 1126 (citing Lehr , 463 U.S. at 254 - 56 (1983); Crawford v. Washington Cnty. Children & Youth Servs., 06-CV-1698, 2008 WL 239454 (W.D. Pa. Jan. 29, 2008). Courts have interpreted Croft to require CYS to conduct an individualized investigation of child abuse claims prior to removing a child from his or her family, or in this case, initiating termination proceedings. See Bower v. Lawrence Cnty. Children & Youth Servs. , 964 F.Supp.2d 475, 486 (W.D. Pa. 2013) ("The removal of Baby Brandon based solely on Jameson's report of the initial urine screen-with no individualized investigation-shocks the conscience and violates Plaintiff's substantive due process rights."); Crawford, 2008 WL 239454 *7 (W.D. Pa. Jan. 29, 2008) (plaintiffs must "demonstrate[] that the underlying investigation failed to comply with the constitutional mandates...").

I will start with an analysis of Ms. Kemmerer's investigation. Since I find that her conduct was not conscience shocking, Mr. Silva's claims against the municipal and supervisory defendants fail as well.[9] City of Los Angeles v. Heller , 475 U.S. 796, 799 (1986) ("[N]either Monell nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm.").

According to Mr. Silva, the Ms. Kemmerer moved to terminate his parental rights based on one encounter with Mrs. Silva at a grocery store. Mr. Silva insists that the meeting was unplanned; therefore, the meeting is not evidence that he would allow further unsupervised visitation between N.S. and her mother.[10] Mr. Silva misses the point. At issue in this case is whether the Ms. Kemmerer's conduct shocks the conscience. Accordingly, Mr. Silva's intentions with regard to the grocery store meeting are not indicative of whether Ms. Kemmerer reasonably believed that N.S. was in danger of abuse. See Croft, 103 F.3d at 1126 ("Our focus here is whether the information available to the defendants at the time would have created an objectively reasonable suspicion of abuse."); See also Miller v. City of Philadelphia , 174 F.3d 368, 377 (3d Cir. 1999) (noting a supervisor's progress reports of the defendant's work were inapposite to defendant's mindset). Rather, Ms. Kemmerer believed that the meeting was arranged based on competent evidence. N.T. 28: 10-13.

In any event, I reject the theory that Ms. Kemmerer recommended termination of Mr. Silva's parental rights based on one violation of the supervised visitation order. The decision to terminate Mr. Silva's rights must be viewed against the background of the twelve month long dependency during which Ms. Kemmerer thoroughly investigated the family's interactions. See Compl. ¶¶ 12 - 23. The breath of the investigation and the facts supporting termination were fully laid out by Ms. Kemmerer at the termination hearing. Mr. Silva has attached a transcript of Ms. Kemmerer's testimony to the complaint; therefore, I may consider her statements when ruling on defendants' motion. Pension Ben. Gaur. Corp. , 998 F.2d at 1196; Compl. ¶ 25, 44 (incorporating the termination hearing transcript and Superior Court opinion by reference). Considering the facts in this context make clear that the initiation of termination proceedings was not the result of the grocery store encounter. Rather, Ms. Kemmerer acted on evidence compiled through an extensive examination of the Silva family.

According to her testimony, Ms. Kemmerer did not think Mr. Silva was capable of parenting N.S. by himself. N.T. 39:15-17. She came to this conclusion based on her observations that: 1.) he did not know when to change N.S.'s diaper; 2.) he had trouble interacting with N.S. as she became more independent; 3.) he did not know what size clothes to buy; and 4.) he engaged in unsafe play with N.S.[11] Id . 37:24-38:21, 39:21-40:24. As a result, Ms. Kemmerer believed that Mr. Silva would need an extensive support network to help raise N.S. Id . 38:22-39:17. Lacking that support, Ms. Kemmerer feared that Mr. Silva would turn to Mrs. Silva for assistance. Id . 37:10-19, 49:15-21. This concern was heightened by Mr. Silva's failure to apprehend the risk Mrs. Silva posed to N.S.[12] and by their meeting at the grocery store just 19 days after the dependency ended. Id . Based on these facts, Ms. Kemmerer had articulable evidence that N.S. was subject to danger of abuse if left in Mr. Silva's care. See Croft, 103 F.3d at 1126 (the state must have articulable evidence that the child is danger of abuse before interfering with the familial relationship).

There is no evidence that Ms. Kemmerer recommended termination because Mr. Silva was an illegal immigrant and unintelligent. Pl.'s Resp. Mem. (Doc. No. 11), at 4. These are not Ms. Kemmerer's observations. Rather, these statements were included in a report prepared by Dr. Rotenberg which Ms. Kemmerer read into the record at the termination hearing. Id . 28: 14-24. Nonetheless, my conscience would not be shocked if Ms. Kemmerer considered Mr. Silva's precarious legal status or mental acuity in reaching her decision. Dr. Rotenberg's report painted a picture of a father skirting the law and living a very unstable and unpredictable life. Due to this lack of stability, Mr. Silva's fortunes could turn suddenly. Thus, Dr. Rotenberg's report further supports Ms. Kemmerer's concern that Mr. Silva would ultimately turn to Mrs. Silva for help.

Ms. Kemmerer's testimony demonstrates that the decision to terminate Mr. Silva's rights was not based on a single event, but rather, it was the outcome of a long and thorough investigation which satisfied Croft. My conclusion is supported by the findings of the Berks County Court. After considering all the evidence, the trial court found by clear and convincing evidence that the grounds for terminating Mr. Silva's rights existed. In re Adoption of Atencio , 650 A.2d 1064, 1066 (Pa 1994) (stating the burden of proof in involuntary termination proceedings). Notwithstanding the Superior Court's reversal of the termination decree, the trial court's finding that clear and convincing evidence supported the termination decree shows that Ms. Kemmerer certainly had objectively reasonable grounds to prosecute the termination petition. Accordingly, Ms. Kemmerer's efforts to terminate Mr. Silva's parental rights do not shock the conscience.[13] Benn v. Universal Health System, Inc. , 371 F.3d 165, 174 (3d Cir.2004) (whether governmental conduct violates substantive due process is a matter of law for the court to decide).

Finally, Mr. Silva contends that Ms. Kemmerer had no factual basis to recommend adoption following the Superior Court's reversal. I disagree. Mr. Silva does not grapple with the starkly different evidentiary burdens at issue. The Superior Court reversed the termination decree finding that CYS did not present clear and convincing evidence that Mr. Silva would again allow Mrs. Silva to see N.S. without supervision. Opinion at 17-19. As a plaintiff in a §1983 action, Mr. Silva must show that defendants lacked articulable evidence. There is no question here that Ms. Kemmerer could articulate some very sound reasons for her concern about Mr. and Mrs. Silva. As I have already discussed, Ms. Kemmerer's year long investigation revealed a great deal of evidence supporting an objectively reasonable suspicion of abuse. The Superior Court's finding that defendants lacked clear and convincing evidence does not disturb my conclusion because the Superior Court held the defendants to a standard higher than the standard for evaluating defendants' conduct in this case. As a result, articulable evidence would still support a recommendation of adoption following the Superior Court ruling. While I agree that seeking adoption following the Superior Court's ruling is confusing, I cannot say it shocks the conscience.


Contrary to Mr. Silva's assertions, I find that Ms. Kemmerer conducted an individualized and thorough investigation. Her conduct does not shock the conscience because it was reasonable for her to believe that Mr. Silva posed a risk to N.S.'s safety. Consequently, Mr. Silva's claims against the remaining defendants fail as well. Therefore, I will grant the defendants' motion to dismiss.

An appropriate order follows.

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