NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 09-4178
                                    ____________

              DAVID T. BREAKWELL; CHRISTINE A. BREAKWELL,

                                                                      Appellants

                                          v.

 ALLEGHENY COUNTY DEPARTEMENT OF HUMAN SERVICES, OFFICE OF
 CHILDREN, YOUTH & FAMILY SERVICES; ALEXIS ANN SAMULSKI; LINDA
        DEDOMINICIS; TERA TERLECKI in their individual capacities
                          ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 08-cv-00389)
                      District Judge: Honorable Nora B. Fischer
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 19, 2010

     Before: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges.

                               (Filed: October 22, 2010)
                                     ____________

                             OPINION OF THE COURT
                                  ____________

HARDIMAN, Circuit Judge.

      David and Christine Breakwell appeal the District Court’s grant of summary

judgment in favor of Allegheny County, an Assistant County Solicitor, and two
employees of the County’s Office of Children, Youth, and Families (CYF). We will

affirm.

                                                I.

          Because we write for the parties, we recount only the essential facts and we do so,

as we must, in the light most favorable to the Breakwells.

          The Breakwells are F.B.’s paternal grandparents and have had physical custody of

her since October 15, 2005. On December 14, 2005, following the arrests of both of

F.B.’s parents, Judge Kim Berkeley Clark entered an emergency shelter order granting

the Breakwells temporary custody of F.B. and suspending visitations between F.B. and

her parents. On January 27, 2006, CYF attorney Alexis Samulski filed an Amended

Petition for Dependency on behalf of F.B. and her brother, as well as their two half-

siblings.

          Judge Clark dismissed the dependency petition on May 22, 2006, concluding that

because the Breakwells stood in loco parentis to F.B., she was not a “dependent” of the

County. On appeal, the Pennsylvania Superior Court reversed, holding that Judge Clark

“erred in dismissing appellant’s dependency petition based on its finding that appellants

stood in loco parentis to the subject child.” The Breakwells were awarded permanent

custody of F.B. by the Court of Common Pleas of Allegheny County on June 5, 2008.

          Before the Breakwells were awarded permanent custody, CYF caseworker Tara

Terlecki and her supervisor, Linda DeDominicis, visited the Breakwell residence four



                                                2
times. During one of those visits on July 19, 2006, DeDominicis “had her hand on the

door and kind of pulled to step in” before the Breakwells denied DeDominicis and

Terlecki entry into their home. The Breakwells also allege that CYF threatened to

remove F.B. from their home if they did not reinstitute visitation between F.B. and her

mother, a directive which would have violated Judge Clark’s emergency shelter order

requiring prior court approval for any such visits.

       The Breakwells sued under 42 U.S.C. § 1983, claiming that Terlecki,

DeDominicis, Samulski, and Allegheny County violated their First, Fourth, and

Fourteenth Amendment rights. The gravamen of the Breakwells’ claim is

straightforward: once they took physical custody of F.B. pursuant to a family

agreement, 1 they stood in loco parentis to her, which forever precluded CYF from

treating F.B. as a “dependent” of the County. The Breakwells argue that CYF violated

their rights to privacy, family integrity, and substantive due process by conducting regular

home visits, insisting upon visitations, and initiating dependency hearings absent any

allegation of unfitness in their care or supervision of F.B.

       The parties filed cross-motions for summary judgment and the Magistrate Judge

issued a Report and Recommendation in favor of the County Defendants. The

Breakwells timely objected, but the District Court adopted the findings of the Magistrate




                                              3
Judge and held: (1) Terlecki, DeDominicis, and Samulski were protected by absolute and

qualified immunity; (2) Allegheny County committed no constitutional violation by

failing to train employees on the rights of in loco parentis custodians; and (3) the Rooker-

Feldman doctrine required that it abstain from reviewing the Superior Court’s decision

reversing Judge Clark’s holding that in loco parentis status is determinative in

dependency proceedings.

                                             II.

       The District Court found that because Terlecki, DeDominicis, and Samulski

(collectively, the Individual Defendants) were acting in a “prosecutorial role” in

instituting dependency proceedings on behalf of F.B., they were absolutely immune from

liability. The Breakwells claim this was error because they themselves were not the

subjects of the dependency proceeding. Even if the Individual Defendants were acting in

a prosecutorial role in initiating dependency proceedings, the Breakwells contend the

Individual Defendants were acting outside of that role when they failed to abide by court

orders and when they attempted to forcibly enter the Breakwells’ home.

       “[T]he Supreme Court has consistently held that [42 U.S.C. § 1983] did not

abolish long-standing common law immunities from civil suits.” Ernst v. Child & Youth

Servs. of Chester Cnty., 

, 493 (3d Cir. 1997) (citing Burns v. Reed, 

       It is unclear whether F.B.’s biological mother assented to the custodial
arrangement. Viewing the record in the light most favorable to the Breakwells, we



                                             4
478, 484 (1991)). In Ernst, we held that social workers are “entitled to absolute immunity

for their actions in petitioning and in formulating and making recommendations to the

state court because those actions are analogous to functions performed by state

prosecutors, who were immune from suit at common 

. But we do

not “accord absolute immunity to ‘investigative or administrative’ actions taken by child

welfare workers outside the context of a judicial proceeding.” 

n.7.

       The functions performed by child welfare workers in initiating dependency

proceedings are analogous to those that prosecutors perform. Just as a prosecutor has

absolute immunity for conduct “intimately associated with the judicial phase of the

criminal process,” Imbler v. Pachtman, 

, 430 (1976), so too are caseworkers

and CYF attorneys immune when initiating dependency actions. 

.

Because the Breakwells’ claims against attorney Samulski are based solely on her actions

as counsel for CYF during the dependency proceedings, we will affirm the District

Court’s summary judgment in favor of Samulski on all of the Breakwells’ claims against

her.

                                                 III.

       As for Terlecki and DeDominicis, we agree with the Breakwells that these CYF

employees are not absolutely immune under Ernst because they acted outside the scope of

the judicial process during home visits and while supervising visitations between F.B. and


assume that both biological parents consented to the arrangement.


                                             5
her biological mother. We therefore turn to the question of whether Terlecki and

DeDominicis are entitled to qualified immunity.

       The doctrine of qualified immunity protects government officials “from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 

, 818 (1982). To determine whether Terlecki and DeDominicis

are entitled to qualified immunity, we must first determine if the Breakwells have

adequately alleged a violation of a constitutional or statutory right that was clearly

established at the time of their alleged conduct. Saucier v. Katz, 

, 201

(2001). “The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” 

Because this inquiry “must be

undertaken in light of the specific context of the case,” a court must consider the state of

the existing law at the time of the alleged violation. See Paff v. Kaltenbach, 

, 431 (3d Cir. 2000).

       The Breakwells allege three constitutional violations: (1) CYF’s interference in the

Breakwells’ in loco parentis arrangement violated their First Amendment rights to

familial association and integrity; (2) Terlecki’s and DeDominicis’s regular inspections of

the Breakwells’ home (and on one occasion, an attempted unconsented-to intrusion)

violated their Fourth Amendment rights to be free from unreasonable searches and



                                              6
seizures; and (3) the cumulative actions of Terlecki and DeDominicis, including threats to

remove F.B. if the Breakwells did not continue visitations with F.B.’s mother, violated

their Fourteenth Amendment rights to privacy, to maintaining custody of F.B., to familial

association and integrity, and to substantive due process. We address each argument in

turn.

                                                  A.

         The Breakwells contend that Pennsylvania state law treats an in loco parentis

relationship “exactly the same as [the relationship] between parent and child.” T.B. v.

L.R.M., 

(Pa. 2001). Like natural parents, the Breakwells claim to have a

fundamental liberty interest in “the care, custody, and control” of F.B., an interest which

may not be compromised absent “some reasonable and articulable evidence giving rise to

a reasonable suspicion that a child has been abused or is in imminent danger of abuse.”

Croft v. Westmoreland Cnty. Children & Youth Servs., 

, 1126 (3d Cir.

1997).

         We have never held that those standing in loco parentis to a child have a

constitutional right to the continued care and supervision of that child. The Breakwells

cite Moore v. City of E. Cleveland for the proposition that the “ambit of constitutional

protection accorded the family extends beyond the relationship of birth parents and

child.” 

, 499 (1977). Although Moore recognizes family members’

fundamental interest in living in the same household, it does not guarantee an extended



                                              7
family member an award of custody whenever a child’s natural parents are subject to an

investigation for allegations of abuse or neglect. See 

(holding

that even for natural parents, the right to custody is not “absolute” and must be balanced

against “the compelling interests of the state in protecting children from abuse”).

       The Breakwells claim the decision of the Pennsylvania Supreme Court in T.B. v.

L.R.M., 

(Pa. 2001)), clearly establishes that a natural parent has the same

“rights and liabilities” as a “person who, although not a biological parent, has lived with

the child and provided care, nurture, and affection” for that child. 

However,

the holding in T.B. v. L.R.M. addresses only the right of an in loco parentis guardian to

seek custody of a child for visitation purposes. 2 

Pennsylvania law regarding

the rights of in loco parentis guardians during dependency proceedings is less clear.

Compare In the Interest of DK, 

(Pa. Super. Ct. 2007) (extending T.B.’s

reasoning to dependency cases), with In the Interest of L.C., 

(Pa. Super. Ct.

2006) (following the Pennsylvania Supreme Court’s decision in In Re Davis, 

(Pa. 1983), which held that Pennsylvania statutory law 3 prohibits consideration of in


       2
         Even in custody disputes, however, the rights of in loco parentis guardians are
more limited than the rights of natural parents. While in loco parentis guardians must be
given “the opportunity to litigate fully the issue of whether that relationship should be
maintained,” T.B. v. 

, in loco parentis status “does not elevate a
third party to parity with a natural parent in determining the merits of custody dispute.”
Jones v. Jones, 

, 917 (Pa. Super. Ct. 2005).
       3
           The Juvenile Act defines a “dependent child” as one who is without a parent,



                                              8
loco parentis status in dependency proceedings); In the Interest of C.B. and A.L, 

(Pa. Super. Ct. 2004) (same). Thus, the rights of an in loco parentis guardian to the

continued care and supervision of a “dependent” child is far from “clearly established”

under state law.

       Accordingly, the District Court did not err in holding that Terlecki and

DeDominicis were entitled to qualified immunity on the First Amendment claim.

                                                 B.

       The Breakwells claim CYF violated their Fourth Amendment rights by conducting

four home visits over the course of two-and-a-half years, which included one attempt to

enter their residence without their consent. We disagree.

       On October 15, 2005, the Breakwells assented to an emergency home visit after

assuming physical custody of F.B. They agreed to a second visit on January 12, 2006,


guardian or legal custodian. 42 PA. CONS. STAT. ANN. § 6302. The Pennsylvania
Supreme Court has stated that “[t]here is no indication that the legislature intended
‘parents’ to include anything other than natural, blood relationship parents, and adoptive
parents.” In Re Davis, 

(Pa. 1983); In the Interest of C.B. and A.L, 

(Pa. Super. Ct. 2004) (“Davis stands for the sound proposition that the doctrine of in
loco parentis should not be employed when determining whether a child has a parent for
purposes of determining whether the child is dependent and thus, whether agency
involvement should be initiated.”). Moreover, while the Juvenile Act defines a
“custodian” as one “who stands in loco parentis to the child,” several state courts have
construed the term “legal custodian” narrowly, as a person who is “awarded custody
pursuant to a Court order.” In re F.B., 

(Pa. Super. Ct. 2007). CYF’s
narrow reading of “legal custodian” is therefore consistent with the state’s “fundamental
precept that the Juvenile Act should be interpreted to accord the most protection to
children.” In the Interest of C.B. and A.L, 

(Pa. Super. Ct. 2004).



                                             9
after Judge Clark granted them temporary custody. A third consensual visit took place on

January 27, 2006. Finally, on July 19, 2006, Terlecki and DeDominicis made an

unannounced visit, but the Breakwells refused to consent to another inspection, so

Terlecki and DeDominicis departed. Prior to being denied entry, DeDominicis “had her

hand on the door and kind of pulled to step in.” App. 169–70.

       Viewing the foregoing facts in the light most favorable to the Breakwells, we have

little trouble concluding that the District Court did not err in finding no Fourth

Amendment violation. The first three home visits do not implicate the Fourth

Amendment because they were consensual. United States v. Wilson, 

, 388

(3d Cir. 2005). As for the final visit, Terlecki and DeDominicis were denied entry to the

Breakwell home, so no “search” occurred. United States v. Santana, 

, 42

(1976).

                                              C.

       The Breakwells next contend that when taken together, the Individual Defendants’

and the County’s actions violated their Fourteenth Amendment rights. The District Court

concluded that the record did not support a finding that Defendants’ conduct was “so

arbitrary” that it “can properly be said to shock the conscience.” Miller v. City of Phila.,

, 376 (3d Cir. 1999). We agree.




                                             10
       As we have explained, the initiation of dependency proceedings on behalf of F.B.,

her brother, and two half-siblings did not violate the Breakwells’ rights to familial

integrity and association. Nor was there an unreasonable “search or seizure” of the

Breakwells’ home. Thus, the only conduct which could theoretically present a colorable

constitutional claim was CYF’s planning and supervision of visits between F.B. and her

mother in violation of Judge Clark’s December 14, 2005 order that “visits be suspended

[between F.B. and her parents] until further order.”

       Indeed, the record indicates that between February and April of 2006, CYF

arranged several visits with F.B.’s mother in violation of Judge Clark’s December 2005

order. See App. 245–46. The fact that these visits were not previously authorized by

Judge Clark, however, does not alone support a finding of conduct so arbitrary as to give

rise to a colorable Fourteenth Amendment claim. All visits between F.B. and her mother

were supervised by CYF employees at either the CYF Regional Office or the Center for

Creative Play. 

record shows that CYF caseworkers communicated

regularly with the Breakwells regarding the times, locations, and types of supervision

available for these visits. 

and DeDominicis developed a reasonable

visitation plan that did not expose F.B. or the Breakwells to any significant risk of harm,

their conduct did not “shock the conscience” and the Breakwells’ Fourteenth Amendment

claim must fail.




                                             11
       In sum, the District Court did not err when it found that Terlecki and DeDominicis

were entitled to qualified immunity on the Fourth and Fourteenth Amendment claims.

                                                D.

       Absent any constitutional violation, the Breakwell’s Monell claim against

Allegheny County necessarily fails. See Grazier v. City of Phila., 

, 124 (3d

Cir. 2003) (“There cannot be an ‘award of damages against a municipal corporation based

on the actions of . . . its officers when in fact . . . the officer[s] inflicted no constitutional

harm.’”).

                                                IV.

       For all the foregoing reasons, we will affirm the judgment of the District Court.

Because we affirm the judgment on these grounds, we need not discuss the District

Court’s analysis under the Rooker-Feldman Doctrine.




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