B.S. v. Somerset Cnty.
| Decision Date | 08 January 2013 |
| Docket Number | No. 11–1833.,11–1833. |
| Citation | 704 F.3d 250 |
| Parties | B.S., and B.S. as guardian and parent of T.S., G.S., and N.S., Appellants v. SOMERSET COUNTY; Somerset County Children and Youth Services; Jessica Eller; Julie Barth. |
| Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
Edward A. Olds, Esq. [argued], Pittsburgh, PA, for Appellant.
Marie M. Jones, Esq. [argued], Jones Passodelis, Pittsburgh, PA, for Appellee.
BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit Judges.
Appellant B.S. (“Mother”) is the natural mother of M.N. (“Daughter”), a minor child. Mother had primary legal custody of Daughter until Daughter was removed from Mother's care in accordance with a court order that transferred custody to the child's natural father, E.N. (“Father”). Mother claims that Somerset County (the “County”), along with Somerset County Children and Youth Services and two of its employees, Julie Barth and Jessica Eller, (collectively, “Appellees”) violated her constitutional rights to substantive and procedural due process in securing and effectuating the transfer and related orders. She seeks to redress those alleged constitutional violations under 42 U.S.C. § 1983, and she is now appealing an order of the United States District Court for the Western District of Pennsylvania that rejected her claims and entered summary judgment in Appellees' favor.
We agree with Mother that her procedural due process rights were violated by the Appellees, though the individual defendants are protected by absolute immunity. As to the substantive due process claims, we conclude that the District Court's grant of summary judgment for the Appellees was correct, though for somewhat different reasons than those expressed by that Court. We will therefore affirm in part and reverse in part the District Court's order and will remand the case for a trial against the County on the damages Mother sustained when her procedural due process rights were violated.
Daughter was born in June 2004 and suffered a variety of medical problems that stunted her growth. In October 2005, Mother took Daughter to a pediatric gastroenterologist named Dr. Douglas Lindblad, who diagnosed Daughter with failure to thrive.2 After running various tests to determine the cause of her condition, Dr. Lindblad referred Daughter for inpatient treatment at the Children's Institute of Pittsburgh (the “Children's Institute”).
She was treated there from March 20, 2006 to March 26, 2006, and gained 50 grams per day during that time. That weight gain was normal for a child of Daughter's age in Daughter's condition, reflecting what “[she] would have been expected to gain plus additional weight which would get ... [her] to the point ... where [she] should [have] be[en] in terms of growth.” (Joint App. at 668; see id. at 669.) Daughter had not experienced normal growth before that time, having previously gained only 8 to 11 grams per day. Sadly, after concluding her inpatient treatment and returning to Mother's care, Daughter gained only 4 grams per day, at least initially.
The “fact that [Daughter's] weight gain when she was an inpatient ... far exceeded her rate of weight gain at home” concerned Dr. Lindblad ( id. at 139), and led him to attribute Daughter's failure to thrive to how Mother was caring for her. Specifically, after examining Daughter on April 18, 2006, Dr. Lindblad concluded that Daughter's failure to thrive was psychosocial, as opposed to physical, in origin. Psychosocial failure to thrive occurs when a “child's failure to thrive is due to some factors in the home that lead the child not to grow well,” and is “usually associated with inadequate caloric intake.” ( Id. at 670.) Although psychosocial failure to thrive is not necessarily associated with neglect, Dr. Lindblad feared that Daughter was being neglected by Mother, and he further opined in his progress notes that he was “concerned about Munchausen by proxy.” 3 ( Id. at 433.)
As a result, Dr. Lindblad believed Daughter was in physical danger that justified reporting to state authorities his fear that Mother was neglecting Daughter, or worse. But while Dr. Lindblad believed that action was warranted after seeing Daughter on April 18, 2006, he did not immediately make a report to “ChildLine,” the Pennsylvania state entity responsible for receiving reports of neglect and abuse.4 Instead, his first contact with state authorities about Daughter's case occurred on May 4, 2006, when he spoke with Jessica Eller. Eller, a child welfare caseworker for Somerset County Children and Youth Services,5 was already investigating Daughter's case and had previously contacted Dr. Lindblad in connection with her investigation. 6
Dr. Lindblad told Eller of the discrepancy between Daughter's inpatient weight gain and her weight gain when under Mother's care, explained his conclusion that Daughter's failure to thrive was psychosocial in origin, and described his concern about Munchausen by proxy. During that conversation, Eller “instructed Dr. Lindblad to [file] a ChildLine report” ( id. at 311), which he did shortly thereafter.
At some point, Eller also made her own ChildLine report.7 A description of Eller's ChildLine report stated that she had opted to make the report after speaking with a referral source and consulting her supervisor, Julie Barth, and the report relayed much of the information Dr. Lindblad had told Eller.8 After making her initial ChildLine report, Eller prepared a summary of her findings in Daughter's case to present to a judge for the purpose of removing Daughter from Mother's home. Her summary, dated May 5, 2006, stated:
[The County] received a referral on May 5, 2006 alleging serious physical neglect of [Daughter] by ... [Mother].... Childline [sic] contacted [the County] and an investigation has been initiated. Allegations of the neglect are psycho-social failure to thrive. [Daughter] is nearly 2 years old and is currently 19 pounds. She was gaining 8–10 grams of weight per day while being fed by her mother, until she entered the Children's Institute due to concerns of low weight on March 20, 2006. While at the Children's Institute, [Daughter] gained 50 grams of weight per day while still being fed by her mother under the supervision of the Institute staff. Since her discharge on March 26, 2006 [Daughter] is now gaining 4–5 grams of weight per day.
[The County] believes that it would be contrary to the welfare of the child ... to continue to reside with and have unsupervised contact with ... [Mother] until the outcome of the investigation is determined. Therefore, the Agency is requesting that all visitation and contact between [Mother] and [Daughter] [be] supervised by the Agency pending the outcome of the investigation.
(Joint App. at 467.) Eller also prepared a corresponding court order to suspend Mother's contact with Daughter and transfer the child to Father's custody.9
According to Appellees, the information relayed in Eller's summary “was based upon [a] good faith recall and reading of” Daughter's medical records. ( Id. at 380.) However, the summary's reference to Daughter's weight being 19 pounds was mistaken, in light of her most recent weigh-ins.10 Whether Eller was aware of any error in the summary is a matter of dispute, but, in any event, she took her prepared summary and court order to Judge Cascio of the Court of Common Pleas of Somerset County, and presented them to him ex parte on May 5, 2006. Judge Cascio reviewed Eller's summary, and signed the proposed order, which provided as follows:
[D]ue to allegations of serious physical neglect which are under investigation by [the County], it is hereby ordered that all contact and visitation between ... [Daughter] and ... [Mother] ... be supervised by [the County] pending the outcome of the investigation. It is also ordered that [Daughter] shall reside with ... [Father] ... until the completion of the investigation and [Mother] shall conduct herself appropriately in all visitations with [Daughter], including no badgering or harassing the agency staff, belittleling [sic] any service providers or ... [Father].
( Id. at 468.) Judge Cascio's order and Eller's summary were each filed under case number 20–B Juvenile 2006.
Armed with Judge Cascio's order, Eller, along with a police officer, went to Mother's home that same day and took Daughter from Mother. Pennsylvania's Child Protective Services Law (the “CPSL”) ordinarily requires that a follow-up hearing be held within 72 hours of a child's removal from a parent's custody. 11 According to Appellees, however, they were not required to schedule such a hearing because, although Daughter was removed from Mother, she was transferred to Father's custody and not to the state's custody. Indeed, as Eller explained it, although a post-removal hearing would normally be required within 72 hours after executing an order taking a child into the state's custody, no hearing is required to comply with state law if the County merely “transfers custody” to another parent, because the County would not have “take [n] custody.” (Joint App. at 292.)
That view was also expressed by Natalie Hunt, the Assistant Director of Somerset County Children and Youth Services. Explaining that the kind of transfer in custody that occurred in this case is employed when there is a fit parent who can take custody of the child, Hunt testified that “the 72–hour–hearing requirement is [not] necessary” unless the County files a dependency petition to take custody of a minor. ( Id. at 331.) Caseworker supervisor, Douglas Walters, echoed Hunt's testimony, stating that, for as long as he could remember, the County would simply contact a judge when it felt it “needed to get an order, obtain an order to stop contact until [the County] could investigate” ( id. at 339–40), and...
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