Mulholland v. Gov't Cnty. of Berks
| Decision Date | 28 January 2013 |
| Docket Number | No. 12–2075.,12–2075. |
| Citation | 706 F.3d 227 |
| Parties | Randy Martin MULHOLLAND; Christine Kurtz, Appellants v. THE GOVERNMENT COUNTY OF BERKS, PENNSYLVANIA; Berks County Children and Youth Services; George Kovarie, MSW, LSW Executive Director of Berks County Children & Youth Services, in his Official Capacity. |
| Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
Thomas G. Wolpert, [Argued], Wolpert Schreiber, Royersford, PA, for Appellants.
Matthew J. Connell, [Argued], Lamb McErlane, West Chester, PA, for Appellees.
Before: SCIRICA, FISHER, and JORDAN, Circuit Judges.
Appellants Randy Mulholland and Christine Kurtz appeal a decision of the United States District Court for the Eastern District of Pennsylvania rendered during trial, granting judgment as a matter of law against them on the claims they brought under 42 U.S.C. § 1983 against Berks County, Pennsylvania. 1 For the following reasons, we will affirm.
I. Background2A. The July 1996 Incident
In July 1996, Mulholland and Kurtz, who consider themselves married under the common law, were separated.3 They agreed that on the night of July 6, 1996, their twelve-year-old daughter, Linda Kurtz, who was visiting from Texas where she lived with Kurtz's mother, would stay at Mulholland's apartment. Linda called Kurtz that evening and said that Mulholland was drunk and was making her feel uncomfortable. Kurtz promptly called the police and went to pick up Linda. When the police arrived at Mulholland's apartment, they interviewed Linda. A police report from that night contains a statement from Linda that Mulholland masturbated in her presence and made sexual comments to her, including that he was “horny,” wanted her to “rub [his] private parts,” and “want[ed] to hump [her] butt.” (App. at 663.) The report also indicates that the police notified “children services,” i.e., the Berks County Office of Children and Youth Services (“BCCYS”), of the incident. (App. at 664.)
Separate from the police investigation and subsequent investigation by BCCYS, Kurtz filed a petition for protection from abuse against Mulholland in the Berks County Court of Common Pleas on July 8, 1996, accusing him of seeking sex from Linda.4 A protection from abuse order was entered after Mulholland failed to appear at two hearings.
BCCYS received the report of suspected child abuse from the police and assigned caseworker Brandy Neider to investigate. On August 2, Neider completed a document known as a CY–48 form, classifying Mulholland as an “indicated” perpetrator of child abuse, and she sent it to Pennsylvania's statewide child abuse registry. That registry, known as ChildLine, is operated and maintained by the Pennsylvania Department of Public Welfare (“DPW”).5 Neider stated in her report that Linda “made consistent and believable statements to [a] caseworker and [a] collateral source,” and confirmed the statements she had made to the police regarding Mulholland's inappropriate behavior. (App. at 674.) The report also indicated that when Kurtz arrived at the apartment to retrieve Linda, she saw Mulholland “in bikini underwear with an erection.” (App. at 674.) Neider noted that Mulholland “did not respond to [a] request for [an] interview.” 6 (App. at 673–74.) Based on the CY–48 form, Mulholland was listed on ChildLine as an “indicated” perpetrator of child abuse.
Mulholland was arrested and charged on July 6, 1996, with indecent exposure and endangering the welfare of a child. The complaint was later amended to include a harassment charge. Mulholland pled guilty on September 24, 1996, to the harassment charge, for which he paid a $50 fine, and the remaining charges were dismissed.7
B. Subsequent Contacts with BCCYS
In the years following the July 1996 incident, the Mulholland–Kurtz family had further encounters with BCCYS. In 1998, Linda ran away from her grandmother's home in Texas, where she was still living at the time. When she arrived at the bus terminal in Reading, Pennsylvania, she called Mulholland and asked him to pick her up. Mulholland retrieved her from the bus station, called BCCYS, and agreed to put her in a shelter until she could be returned to Texas. A BCCYS caseworker told Linda that she could not see her father because “he did something with [her].” (App. at 116–17.) According to her 2009 trial testimony in this action, Linda denied the allegation at the time, but the caseworker “said she did not care and [did not] want to hear it.” (App. at 117.)
In 1999, Mulholland's and Kurtz's then-teenage son Irvin was adjudicated delinquent for raping his younger cousin. In connection with that incident, BCCYS proposed a family service plan in which it identified Mulholland as a “perpetrator.” Mulholland and Kurtz, who had resumed living together, refused the agency's services. In response to the family service plan, a lawyer representing Mulholland and Kurtz sent a letter to BCCYS, stating:
[Y]our documentation refers to Mr. Mulholland as being a “perpetrator.” ...It appears that you are insinuating that there has been sexual abuse committed by Mr. Mulholland. This allegation and reference is unfounded and you should immediately cease and desist from any such reference and delete any such reference from you[r] records.
(App. at 561.) Several days later, the lawyer sent a second letter to BCCYS threatening that, if any BCCYS record containing allegations of sexual abuse was not immediately expunged, Mulholland would take legal action. BCCYS never responded to either letter, and Mulholland took no further action.
On August 27, 2003, a BCCYS caseworker visited Appellants' home to inquire about a child of Brenda Heddy's. Heddy is Kurtz's sister-in-law and had, along with her six children, moved in with Mulholland and Kurtz. The caseworker concluded that the children were safe since all adults in the home (Heddy, Kurtz, and Mulholland) understood that Barry Kurtz, Sr., the children's father, was not allowed to be alone with any of the children because he was listed as an indicated perpetrator of child abuse on ChildLine. The caseworker gave no indication that Mulholland himself was similarly listed on ChildLine. A BCCYS caseworker visited the home again in October 2005 and again concluded that all children in the home were safe.
Mulholland contacted BCCYS in September 2006, after Kurtz took their granddaughter S.G. away from the home of the child's parents, Irvin and his girlfriend, who, in Kurtz's view, were neglecting S.G. A BCCYS caseworker visited Mulholland's and Kurtz's home on September 23, 2006, and determined that S.G. could stay there over the weekend. No indication was given that Mulholland might pose a threat to the children's safety.
On September 29, 2006, Mulholland and Kurtz appeared before a judge of the Berks County Court of Common Pleas. In the presence of multiple BCCYS employees, the judge issued an order granting temporary custody of S.G. to Kurtz. When Mulholland and Kurtz returned home with S.G. that evening, however, they encountered a group of BCCYS caseworkers and police officers. Following the custody proceeding, BCCYS had obtained an emergency court order to remove Mulholland's and Kurtz's two teenage children, Heddy's children, and S.G. from the home, based on Mulholland's listing on ChildLine as an indicated perpetrator of child abuse. Mulholland's and Kurtz's children were returned to Kurtz approximately six weeks later, after Kurtz moved into a separate residence. The Heddy children were not returned to the care of Heddy and Kurtz until June 2008.8
Mulholland and Kurtz later testified that they were not told of Mulholland's listing on ChildLine until March 2007 and that prior to that time they were unaware of the listing. That claim is puzzling not only because Mulholland, through counsel, had responded in 1999 to a BCCYS statement that he was a child abuse “perpetrator,” but also because the confrontation with BCCYS caseworkers and the police in September 2006 should surely have given Mulholland and Kurtz some idea of Mulholland's ChildLine listing. Nevertheless, they say that, upon first becoming aware of the ChildLine listing in March 2007, they took steps to remove him from the registry. The criminal charges of indecent exposure and endangering the welfare of a child, which had been dismissed in 1996 but remained on Mulholland's criminal record, were expunged on May 4, 2007, via a court order. By the time Mulholland attempted to appeal his ChildLine listing in late 2007, BCCYS had destroyed its records of the 1996 investigation pursuant to a provision of the Pennsylvania Child Protective Services Law (“CPSL”) that requires county agencies to destroy all records about a child when he or she reaches the age of twenty-three.9 Mulholland did not appeal his ChildLine listing until shortly after Linda had turned twenty-three.
In 2008, DPW's Bureau of Hearings and Appeals 10 found that DPW had not sent notice to Mulholland in 1996 at the time he was listed on ChildLine, and it ordered a hearing on the merits. At the merits hearing, BCCYS argued that Mulholland's status should be changed from “indicated” perpetrator to “founded” perpetrator because he had pled guilty to the harassment charge arising from the July 1996 incident.11 By order dated March 2, 2009, however, the Bureau of Hearings and Appeals adopted the recommendation of an administrative law judge who found that no substantial evidence existed to maintain Mulholland's listing on ChildLine as even an indicated perpetrator of child abuse. The decision was affirmed upon reconsideration by DPW and on appeal to the Commonwealth Court of Pennsylvania. The ChildLine listing was expunged as of July 23, 2010.
C. Trial and Procedural History
On October 25, 2010, Mulholland and Kurtz brought suit in the United States District Court for the Eastern District of Pennsylvania against Berks County, BCCYS, and BCCYS Executive Director George Kovarie...
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