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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 ...

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