SEAN J. McLAUGHLIN, District Judge.
This civil action arises out of a tragic case in which Brittany Legler, a mentally handicapped teenager, was killed at the hands of her adoptive mother, Lisa Iarussi. Plaintiffs Charles Hayes and Victoria L. Hayes, the Administrators of Brittany's estate, have brought this lawsuit against the Erie County Office of Children and Youth ("OCY") and several of its present or former employees,
Presently pending before the Court is a motion by the Defendants for summary judgment. This Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1343(a) and 1367(a). For the reasons set forth below, the motion will be granted.
In adjudicating a motion for summary judgment, we apply the well-established legal standard presently set forth in Fed. R.Civ.P. 56(a), pursuant to which summary judgment shall be granted when no genuine dispute exists as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "A disputed fact is `material' if it would affect the outcome of the suit as determined by the substantive law," Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 771 (3d Cir.2009) (citation omitted), and a factual dispute is "genuine," and thus warrants trial, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, in order for a claim to survive summary judgment, "there must be [significantly probative] evidence on which the jury could reasonably find for the plaintiff." Id. For purposes of Rule 56, we assume that the non-moving party's allegations are true and give the non-moving party the benefit of the doubt when those allegations conflict with the moving party's claims. Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir.1995). However, summary judgment must be entered against any party unable to present sufficient evidence in support of an essential element of a claim because "a complete
With this standard in mind, we review the evidence of record. Except as otherwise indicated, the following facts are undisputed.
Brittany Legler first came into contact with OCY in 1998 when her biological family was referred to the agency for general neglect. (Defs.' Ex. 24 [126]
Initially, Brittany and her siblings were placed in the care of their biological father due to the fact that their mother had allowed a known perpetrator of sexual abuse to have access to the children. (Defs.' Ex. 9 [81] at p. 30.) However, the children were later removed from their father's care when concerns surfaced that the father himself might be committing sexual abuse. (Defs.' Ex. 24 [126] at ¶¶ 7-14.)
Brittany was found to be a dependent child by the Erie County Court of Common Pleas and detained at a foster home placement because of a finding of neglect, excessive truancy, and lack of supervision, exposure to known sexual perpetrators, and possible sexual abuse. Her placement into foster care occurred on April 12, 1999. (Defs.' Ex. 24 [126] at ¶ 7; Defs.' Ex. 9 [81] at p. 6.)
In July of 1999, Brittany began receiving counseling services through the Sexual Abuse Initiative Program run by Family Services of Northwest Pennsylvania. At that time, it was reported that Brittany was developmentally delayed, had a history of sexual abuse, and had been in the presence of a known perpetrator when in her mother's care. In her foster care placement she was displaying aggressive and manipulative behavior and was having difficulty understanding personal safety issues. (Defs.' Ex. 19 [91] at p. 1.)
Over the course of the ensuing months, Brittany disclosed to Gallagher that she didn't want to live with her father and his girlfriend, stating that the girlfriend was "mean" and "locks them out of the house" (Defs.' Ex. 24 [126] at ¶ 8.) Eventually, Brittany further disclosed that she had suffered sexual abuse at the hands of her father and his girlfriend, which resulted in the matter being taken up by law enforcement authorities. (Id. at ¶¶ 9-14.)
Brittany continued to reside in foster care from April 1999 to May 2000. Although she suffered no major problems in that setting, a decision was made to find a permanent placement for Brittany, as her foster family was not interested or able to make a commitment to adopt. (Defs.' Ex. 9 [81] at pp. 6-8.)
At some point while Brittany was still in foster care, Lisa Iarussi was identified as a possible permanent placement source for Brittany. Iarussi was a former classmate and friend of Brittany's mother, who had known Brittany since her infancy and had frequently cared for her. (Defs.' Ex. 4 [76] at p. 2.)
In April of 2000, OCY contracted with Family Services of Northwestern Pennsylvania to perform a kinship family profile of Iarussi. The profile was performed by Ann Badach, an adoption caseworker, and summarized in a report dated July 27, 2000. (Defs.' Ex. 24 [126] at ¶ 15; Defs.' Ex. 4 [76].)
In the course of conducting her study, Badach had several contacts with Iarussi, including three interviews of Iarussi at her mobile home in Millcreek Township. Badach reported that Iarussi was motivated to provide kinship care for Brittany partly because of the "close bond she has developed with Brittany over the years since her birth." (Defs.' Ex. 4 [76] at p. 2.)
Badach's study involved obtaining Iarussi's biographical information, from which she learned that Iarussi had been diagnosed as a child with Attention Deficit Disorder ("ADD") and "`some type' of developmental delay" which had resulted in her receiving special education instruction during her grade school years. (Defs.' Ex. 4 [76] at p. 4.) After dropping out of highschool and attending cosmetology school, Iarussi had become involved with a man whom she subsequently married at age 17. This marriage, which Iarussi described as "very immature," lasted only a few months. (Id. at p. 5.) Following this break-up, Iarussi suffered a period of depression, which resolved successfully following a two-year period of treatment with Zoloft. (Id. at p. 6.)
Iarussi subsequently became involved in a 12-year relationship with an individual who suffered from alcohol addiction and who subjected Iarussi to emotional and physical abuse, including one incident which had resulted in the individual being arrested and jailed overnight for physically beating her. After quitting this relationship, Iarussi subsequently became involved with another man by whom she became pregnant. This individual became addicted to crack cocaine and left Iarussi shortly after the birth of their daughter, Abigail (hereinafter, "Abby"). (Defs.' Ex. 4 [76] at p. 6.)
At the time of her study, Badach found that Iarussi was living alone in a 14 x 80 mobile home with Abby, who was then four-years old. Iarussi was reportedly unable to hold steady employment due to her ADD but was receiving assistance in the form of food stamps, a monthly SSI check, and disability benefits for "ADD/Depression and a (untitled) Learning Disability." (Defs.' Ex. 4 [76] at pp. 5, 7.) Iarussi was also seeing a counselor at St. Vincent Behavioral Health in order to, as Badach described it, "assist her in steadying her sense of self-esteem and self-image due to
As a parent, Iarussi was felt to display a responsible attitude. Badach described her parenting style as "fairly calm and stable" and reported that Iarussi enjoyed being a parent and had a close bond with her daughter Abby, whom she loved very much. (Defs.' Ex. 4 [76] at p. 6.) Badach found Abby to be a bright, cheerful, and inquisitive child who was fond of Brittany and enjoyed Brittany's company. (Id.) Iarussi advised Badach that her plan for caring for Brittany was to parent Brittany in the same way that she had parented Abby. (Id.)
As part of her study, Badach conducted clearance checks with the City of Erie Police Department, the Pennsylvania State Police, OCY, and the Pennsylvania Department of Public Welfare's ChildLine. None of these sources reported any negative information concerning Iarussi. In addition, Badach requested access to Iarussi's records from St. Vincent Behavioral Health. After initially agreeing to this request, Iarussi revoked her consent, citing the fact that she preferred to not allow disclosure of her patient records until she established a stronger, long-term bond with her counselor. (Defs.' Ex. 4 [76] at pp. 6-7.)
Badach's study also involved feedback from four references, all of whom expressed support for Iarussi's interest in providing kinship care for Brittany. (Defs.' Ex. 4 [76] at pp. 7-9.) One of the four references was Plaintiff Victoria L. Hayes, Iarussi's biological sister. In a written reference dated May 19, 2000, Hayes described Iarussi as "a lot of fun" and someone whose strengths included the fact that she "loves being around children[,] reading to them, caring for them[.] [A]ny child would benefit from her care." (Defs.' Ex. 3 [75] at p. 1.) As to Iarussi's weaknesses, Hayes wrote that, "Lisa worries a lot [sic] which in this day & age you almost have no choice. It's better to be a worrier than not ..." (Id.) She described Iarussi's personality as "a very sweet girl. She would give you the world on a silver platter if she could. She loves people & has many friends." (Id.) Hayes responded positively when asked whether she felt Iarussi would be able to provide a good home for Brittany: "[Lisa] is wonderful with children. I have six children of my own & everyone of them adore her. She would take good care of any child. It's just her nature." (Id.) Asked whether she had observed Iarussi with children, Hayes wrote, "She is really good with children. She listens alot [sic]. She can come down to their level so that the child knows that she understands & cares." (Id. at p. 2.) In commenting on Iarussi's experience or training, Hayes wrote, "I wouldn't say she has alot [sic] of experience but her caring ways about her mean she'll do a great job & children just attract to her ..." (Id.) She further commented: "Lisa will make a wonderful foster mother to Brittany. They've always had a great relationship & I think Brittany feels safe with Lisa. Lisa will show her the best ways to get through life & keep out of trouble." (Id.) Asked whether she had any reservations about recommending her sister as a care-giver, Hayes wrote, "I have no doubt in my mind that Lisa will be a terrific care giver to any child. Especially to Brittany[.] [T]hey have already formed a close bond to each other." (Id.)
A second individual who had been a neighbor and friend of Iarussi's for approximately five years indicated that she
A third source who had known Iarussi for over ten years as a neighbor and a friend described her (in Badach's words) as "a very giving and caring person who is outgoing and mixes very well with all kinds of people." (Defs.' Ex. 4 [76] at p. 8.) This woman reported having no reservations about recommending Iarussi as a kinship care provider and believed that Iarussi would be able to provide a good home. In addition, this individual claimed to have had occasion to observe Iarussi interacting with Brittany and reportedly "indicated that Lisa treats Brittany with the same kindness and respect that she does to her own daughter, Abby." (Id.)
A fourth reference, who had been friends with Iarussi for three years, described her as a caring, loving, and sentimental person whose strengths were being able to relate well to children. This source believed that Iarussi would be a very good kinship parent for Brittany and indicated that she would not hesitate to entrust her own children to Iarussi's care. (Defs.' Ex. 4 [76] at pp. 8-9.)
Badach's report, dated July 27, 2000, reflects her own impression that Iarussi was a "committed caregiver of children" and someone who could provide the "stability and continuity" that Brittany would need. (Defs.' Ex. 4 [76] at p. 10.) It was noted that Iarussi had set a "lofty goal" in planning to be a self-sufficient homeowner within five years, and Badach expressed concern that this goal might be too difficult for Iarussi to meet, given her limited financial means. "In addition," Badach noted,
(Id.) Nonetheless, Badach felt Iarussi's desire to care for Brittany was "certainly authentic." (Id.) She also felt that Iarussi had managed very well as a single parent to Abby, who was well-behaved, listened well, and showed her mother love and respect. (Id.)
(Defs.' Ex. 4 [76] at p. 11.) Badach thought it would be beneficial for the family to have continuous support services in place while Iarussi transitioned from a part-time to a full-time caregiver and parent. (Id.) "In addition," Badach noted, "as Lisa continues to explore her own personal issues with a therapist, it would be helpful to allow her an opportunity to work collectively with a professional in parenting a child with a known history of being a victim of abuse herself. It is hoped that Ms. Iarussi will not `take on' the issues of Brittany upon herself as she works through her own history of abuse, as well." (Id.)
While Badach's study was in progress, OCY took steps to facilitate Brittany's placement with Iarussi on an interim basis. On June 9, 2000, Gallagher and Vallone filed a request with the juvenile court for permission to transfer Brittany into Iarussi's home pending the next permanency hearing, which was scheduled for the following November. In support of this request, Gallagher and Vallone stated that:
(Pls.' Appendix 1 [116-1] at p. 16 (emphasis added).) Copies of OCY's request were sent to the attorney representing Brittany's parents, as well as to Christine Jewell, Esq., Brittany's appointed guardian ad litem, and Sheila Baldwin, her Court Appointed Special Advocate (CASA). (Id.)
On June 13, 2000, Baldwin sent a letter to the juvenile court concurring with the request to place Brittany with Iarussi. Baldwin's only stated concern at that point was that Brittany continue her counseling through the Sexual Abuse Initiative and that Iarussi be included in the counseling so as to address safety concerns for Brittany. Baldwin noted in her letter that, "[a]lthough there had been some concern about Ms. Iarussi complying with this order, at this point in time she has agreed to do so." (Defs.' Ex. 6 [78] at p. 1.)
The juvenile court approved the placement request on June 15, 2000. (Pls.' Ex. Vol. 1 [116-1] at p. 15.) At this point, Brittany left her foster care home and began living with Iarussi on a full-time basis.
Following her placement with Iarussi, Brittany continued to receive various "Wraparound" services coordinated through the Sexual Abuse Initiative ("SAI") of Family Services of Northwestern Pennsylvania. This Behavioral Health Rehabilitative Services Team—informally referred to as the "Wraparound Team"—included Danielle Szklenski, Supervisor
During the time period June 2000 through May of 2001, while Brittany was living with Iarussi but prior to her adoption, there were various discussions among the Wraparound Team members regarding Brittany's progress. (Defs.' Ex. 17 [89] at p. 12.) On some occasions, Brittany's biological mother, her maternal grandmother, and Iarussi were present, along with the team members. (Id. at pp. 12-14; Defs.' Ex. 18 [90] at pp. 1-5.) Reports from the team meetings suggest that a degree of conflict developed between Iarussi and Brittany's mother over matters of visitation and perceived criticisms by Iarussi concerning the choices and actions of Brittany's mother.
One such incident was noted at an August 30, 2000 meeting of the Wraparound Team. (See Defs.' Ex. 18 [90].) As of that date, Brittany was seeing her mother and siblings twice a month through prearranged visits. (Id. at p. 1.) She had just started the school year and was reportedly doing well. (Id. at p. 2.) However, some two weeks earlier a disagreement had arisen when, at the start of a prescheduled visit between Brittany and her mother, Iarussi had requested that Brittany return early in order to attend a family picnic. That day happened to be the mother's birthday and, wanting Brittany to stay for her entire allotted visitation time, Brittany's mother refused the request. (Id. at pp. 1-2.) Gallagher and Szklenski agreed that the visits should occur on the pre-scheduled dates and times unless an agreement to do otherwise were reached in advance. There was also a request by Brittany's mother to have more regular phone contact with Brittany, which she claimed was not occurring. (Id. at p. 2.) Other discussions centered around Brittany's mother's finances, her improved interaction with her children, and her goal of obtaining independent, safe housing. (Id. at p. 4.)
On September 20, 2000, the Wraparound Team met again, this time with both Iarussi and Brittany's mother present. It was noted that Brittany was enrolled in the sixth grade life skills classes at her new school and she had not engaged in any sexualized behaviors over the past several weeks. The team identified numerous "strengths" in Brittany—namely, that she was cute and friendly, she liked spending time with her mother and siblings, she interacted well with other children, she was loving and caring and enjoyed school, she loved Iarussi's daughter Abby, she had participated in various summer outings and activities, and she enjoyed math and gym and riding her bike. The team also noted that "[c]urrently, a great deal of tension ha[d] been mounting" between Brittany's mother and Iarussi, and it centered around Iarussi limiting contact between Brittany and her mother. (Defs.' Ex. 20 [92] at p. 1.)
One week later, the Team reassembled and generated a progress update. Brittany's mother and Iarussi were both present,
On October 16, 2000, Danielle Szklenski submitted a summary of Brittany's status to the juvenile court. (See Defs.' Ex. 19 [91].) Szklenski noted that Brittany was residing in a well-kept mobile home with Iarussi and her daughter Abby and that Brittany was succeeding socially and academically at school. Brittany's diagnosis, reviewed as of September 20, 2000 by Martha Eichenlaub, a licensed psychologist, was ADHD, Sexual Abuse of a Child, and Mental Retardation. She had completed counseling at Rape Crisis of Erie County and was seeing her mother and four siblings twice monthly at the Mercy Center for Women.
In her summary report, Szklenski noted the "strengths" that the team had identified for Brittany at its September 20, 2000 meeting, adding also that Brittany "has two women ([her mother and Iarussi]) who both love her very much." (See Defs.' Ex. 19 [91] at p. 2.) Szklenski also discussed Brittany's various needs, including the need to define and make permanent a long-range plan regarding residency, the need for Iarussi to formalize a safety plan to prevent sexual touching of Abby by Brittany, and the need for Iarussi and Brittany's mother to resolve their conflicts and minimize hostility so as to ease the tension this was creating for Brittany. Szklenski noted that she had not yet explored Brittany's prior trauma, as Brittany seemed anxious about the uncertainty of her future and the focus thus far had been on stabilization. (Id.)
With regard to her current living situation, Szklenski reported,
(See Defs.' Ex. 19 [91] at p. 3.)
Szklenski also reported on the tension that had built between Brittany's mother and Iarussi relative to Brittany's custodial arrangement:
(Defs.' Ex. 19 [91] at pp. 3-4.) Brittany's mother appeared to be more comfortable with the custodial arrangement of one of her other children, who had been placed with a family member. Because that placement involved a family relation, Brittany's mother felt she had greater access to her child and trusted that she would be portrayed more favorably to her children. (Id. at p. 4.)
Although Szklenski did not feel it was her role to make a placement recommendation, she enumerated several reasons for the court to consider reunifying Brittany with her mother, as well as several reasons for it to consider involuntary termination of parental rights and adoption by Iarussi. With respect to reunification, Szklenski noted:
(See Defs.' Ex. 19 [91] at p. 4.)
Szklenski offered the following reasons for the court to consider the involuntary termination of parental rights and adoption by Iarussi:
(See Defs.' Ex. 19 [91] at p. 5.)
On November 3, 2000, Brittany was referred to Donna Ziegler, Ph.D., for a psychological consultation due to questions concerning what disposition and/or placement options would best meet her emotional needs—specifically, whether Brittany should remain in her placement with Lisa Iarussi or be returned to the care of her mother. (Def.'s Ex. 25 [97] at pp. 2-3; Ex. 26 [98] at p. 1.) When questioned as to why she preferred to remain with Iarussi, Brittany replied that "she takes care of me" and that "she loves me." (Defs.' Ex. 25 [97] at pp. 10-12; Ex. 26 [98] at p. 2.) When asked why she would not prefer to return to her mother, Brittany responded that "she got to take care of those two" and "she needs to get out of the Mercy. She's trying as hard as she can to get on her feet." (Defs.' Ex. 26 [98] at p. 2.)
In eliciting responses from Brittany, Dr. Ziegler felt that Brittany's comments were authentic and not the result of coaching. (Defs.' Ex. 25 [97] at p. 12.) She noted that Brittany seemed to be experiencing anxiety about at a court hearing that was scheduled for later that day, especially the possibility of seeing her father there. (Defs.' Ex. 25 [97] at p. 14; Ex. 26 [98] at p. 3.) When asked about what the judge might say at the hearing, Brittany responded, "[I]f my mom get me back or if Lisa get me. I don't want to go back to my mom. I'll probably watch [my younger siblings]. I'm only eleven." (Ex. 26 [98] at p. 3.) Dr. Ziegler interpreted this as "an apparent reference to the expectation that she would be responsible in some ways for younger siblings, and her awareness that this expectation was excessive for her at her age." (Id.) Although Brittany expressed sadness at the idea of losing contact with her biological siblings in the event she were adopted by Iarussi, she never expressed a desire to live with her mother and, in fact, Dr. Ziegler concluded that the opposite was true. (Pls.' Ex. Vol. 1 [116-1] at p. 26.)
Psychological testing revealed that Brittany demonstrated clinically significant levels of depression, negative mood, interpersonal problems, feelings of ineffectiveness and anhedonia. (Defs.' Ex. 26 [98] at pp. 3-4.) In Dr. Ziegler's view, the depression was likely a result of Brittany's psychosocial stressors, including apprehension about the potential outcome of the pending court hearing, the fact that she might encounter her father there, the fact that she might be returned to her mother, and concern that she might be separated from Abby and Iarussi. (Id. at p. 4; Ex. 25 [97] at p. 27.)
In spite of this, however, Dr. Ziegler felt that Brittany was well adjusted considering her significant history of sexual abuse and chronic neglect. (Defs.' Ex. 26 [98] at p. 4.) On the whole, she presented a solid, positive self-esteem and no greater preoccupation with sexual issues than would be expected in light of her history. She was able to verbalize her preferences and support them with very relevant needs and perceptions based upon her own security and safety issues. It was felt that Brittany "clearly associate[d] a return to her mother's care with high expectations that are not appropriate for her, i.e., for care and supervision of her younger siblings." (Defs.' Ex. 26 [98] at p. 4; see also Ex. 25 [97] at pp. 21-24.)
Dr. Ziegler concluded by making the following recommendations:
(Defs.' Ex. 26 [98] at pp. 4-5.) In making these recommendations, Dr. Ziegler was never asked to interview Iarussi or review any her personal records. Dr. Ziegler viewed her role not as one where she was making an assessment of Iarussi's fitness to parent; rather she viewed her role as being an independent evaluator and advocate for Brittany. (Pls.' Ex. Vol. 1 [116-1] at pp. 34-35.)
On November 3, 2000, the same day that Brittany was evaluated by Dr. Ziegler, the juvenile court held a hearing to consider whether the parental rights of Brittany's biological parents should be involuntarily terminated and/or whether Brittany should continue permanently in the care of Iarussi. At the hearing, OCY took the position that it was in Brittany's best interest to terminate parent rights and to proceed toward adoption by Iarussi. However, in a report submitted by OCY at the November 3 hearing, the Agency candidly advised the court that members of the Wraparound Team disagreed with this plan. In relevant part, this report, as read into the present record, stated as follows:
(Defs.' Ex. 9 [81] at p. 31-32.) OCY's concerns about reunifying Brittany with her mother appear to have stemmed from the fact that Brittany's mother was mentally challenged and had a history of making bad decisions. (Id. at 42.)
Those present at hearing and, thus, privy to the Wraparound Team's objections, included not only the juvenile court judge but also Brittany's CASA (Baldwin), her guardian ad litem, her natural parents, and their attorney. (Defs.' Ex. 9 [81] at pp. 30-34.) In fact, an objection was raised at the hearing by counsel for Brittany's mother concerning Brittany's continued placement with Iarussi, as Brittany's mother still wanted to be reunified with her daughter. There was also talk during the November 3, 2000 hearing concerning whether another family that had already adopted one or two of Brittany's siblings
Following the completion of Dr. Ziegler's report on November 16, the juvenile court entered an order, dated November 21, 2000, in which it found the following with respect to Brittany:
(Defs.' Ex. 24 [126] at ¶ 29.)
The following day, Baldwin issued a letter to the court in which she expressed support for OCY's permanency plan. In her letter, Baldwin represented that "Brittany is thriving in the home of Lisa Iarussi and she clearly states that this is where she wishes to remain." (Defs.' 6 [78] at p. 5.) Baldwin further remarked that the permanency plan was not "haphazard"; rather, "a lot of thought and preparation ha[d] gone into making it a successful placement for Brittany," and, moreover, "[t]he professional service providers who [were] working with [Brittany's] family [were] also in support of it." (Id.) Copies of the letter were ostensibly sent to Gallagher and Brittany's guardian ad litem, as well as the attorney representing Brittany's mother.
Baldwin corresponded with the court again on December 12, 2000 to reiterate her support for OCY's permanency plan. Elaborating, Baldwin wrote:
(Defs. Ex. 6 [78] at p. 6.)
The letter went on to address the suggestion, apparently raised by counsel for Brittany's mother at the November 3, 2000 hearing, that an alternative placement resource might exist for Brittany. Although Baldwin considered this alternative resource to be "a very generous person who sincerely wants to help in any way that she can," Baldwin noted that a Family Preservation Specialist had worked with that family for six months and did not recommend that Brittany be placed with them, as the family had already taken in two of Brittany's siblings as well as their own adult daughter and her son. (Defs. Ex. 6 [78] at p. 6.) Although she felt "sure they would all be loving to Brittany," Baldwin recommended against placing Brittany with this family because they lacked the space for another child and the arrangement, Baldwin felt, would not be in Brittany's bests interests. (Id.) Baldwin concluded:
(Id.) Both Gallagher and Brittany's guardian ad litem were copied on this letter. (Id.)
During the latter part of 2000, when, as Szklenski put it, "things were coming to a head in terms of whether or not the recommendation was going to be for Brittany to return to her mother or for rights to be terminated," (Pls.' Ex. Vol. 1 [116-1] at p. 38), Szklenski observed that Iarussi was becoming increasingly "agitated ... [a]bout the possibility of losing Brittany." (Id.) Specifically, Szklenski and Iarussi had some conversations around this time during which Iarussi yelled and expressed anger over what she perceived to be a lack of support for her efforts to become Brittany's caregiver. (Id.) According to Szklenski, Iarussi also expressed her feeling that "perhaps she should just give Brittany back, because it would be so damaging to her emotionally if she lost Brittany, if Brittany didn't live with her." (Id.) This agitation, which was continuing to be expressed in an ongoing basis, led to some concerns on Szklenski's part about Iarussi's emotional stability. (Id. at 37-39.) Szklenski was also aware that Iarussi, in connection with Badach's kinship care study, had revoked her consent relative to the release of her records from St. Vincent Behavioral Health. (Pls.' Ex. Vol. 1 [116-1] at p. 47.)
Accordingly, at some point in January or February of 2001, Szklenski contacted Gallagher to "suggest that perhaps they should consider a psychological or a psychiatric eval[uation] for Lisa, because of her instability." (Pls.' Ex. Vol. 1 [116-1] at p. 41; see id. at 37, 39.) In light of Iarussi's revocation of consent relative to her mental health records, it was Szklenski's belief that "perhaps an evaluation would clarify some things." (Id. at p. 47.) Gallagher informed Szklenski that she would discuss the matter with her supervisor, Defendant Vallone. (Pls.' Ex. Vol. 1 [116-1] at pp. 40, 43.)
Several weeks later, Szklenski contacted Gallagher again to inquire whether OCY had considered her suggestion about a psychological or psychiatric evaluation. (Pls.' Ex. Vol. 1 [116-1] at pp. 41.) According to Szklenski, Gallagher inquired, either directly or indirectly, whether Szklenski felt that Brittany was at risk of physical abuse or in danger in Iarussi's home, and Szklenski indicated that she did not believe so. (Defs.' Ex. 17 [89] at pp. 49-50; see also id. at pp. 52-53; 64.) Gallagher also communicated to Szklenski that, "if [she] felt, or anyone felt, that Brittany were in physical danger, that [OCY] would certainly act on that." (Id. at 50-51; see also id. at p. 54.) Accordingly, the issue of a psychological evaluation was not pursued further because "it was felt that [an evaluation] was not warranted." (Id.; Defs.' Ex. 17 [89] at p. 48.)
On March 6, 2001, Brittany's parents voluntarily relinquished their parental rights with respect to her, thus clearing the way for her adoption by Iarussi. (Pls.' Ex. Vol. 2 [116-2] at p. 16.) After this development, according to Szklenski, things seemed to settle down and her concerns over Iarussi's emotional stability began to diminish. (Defs.' Ex. 17 [89] at pp. 58, 61-62.)
In April of 2001 Brittany's case was transferred from Gallagher to Defendant Michael Hughes. (Defs.' Ex. 9 [81] at p. 4.) At this point in time, according to Hughes, the decision had already been made by OCY to pursue permanent adoption by Iarussi and Hughes' responsibilities included monitoring her case for the few months preceding the adoption and getting all the final paperwork in order. (Defs.' Ex. 13 [85] at p. 2.) During this time Hughes met with Brittany and Iarussi
The following month, the juvenile court held another permanency hearing. On May 7, 2001, the court entered an order finding, among other things, that:
(Defs.' Ex. 24 [126] at ¶ 30.)
On July 31, 2001, the orphan's court issued an order setting the adoption hearing for August 22, 2001. (Pls.' Ex. Vol. 2 [116-2] at p. 32.) The order directed that "[a] home study shall be performed and submitted to verify the statements of the [adoption] Petition and to provide such other facts as will give the Court full knowledge of the desirability of the proposed adoption." (Id.) In addition, the order directed that "[a] Child Line Clearance and Pennsylvania State Police Criminal Record Check shall be submitted to the Court no later than the time of the scheduled hearing ..." (Id.) There is no documentation in the present record to confirm whether these measures were undertaken. According to Hughes, home studies generally have to be updated every year, at least for Child Line and criminal history clearances, or if there are changes with respect to medical or financial concerns. (Defs.' Ex. 13 [85] at p. 4.)
In any event, the orphan's court approved Iarussi's adoption of Brittany on August 22, 2001. (Pls.' Ex. Vol. 2 [116-2].) At the hearing, Hughes appeared on behalf of OCY in his capacity as Brittany's caseworker and recommended that the court approve the adoption. (Id. at p. 14.) He certified to the court that OCY Iarussi had been provided OCY's full file concerning Brittany's medical history and social history. (Id. at p. 17.) Hughes further testified that Brittany had no particular physical, emotional, or social difficulties and that she was "basically a normal, healthy child," although he also acknowledged that she had been diagnosed as mentally retarded and was receiving social security disability benefits. (Id. at p. 18.)
Iarussi also testified at the hearing. She represented to the court that she was a homemaker with no employment but that she had the financial means to support Brittany. (Pls.' Ex. Vol. 2 [116-2] at pp. 21-22.) She acknowledged that Brittany was receiving social security benefits and that the adoption was a permanent arrangement. (Id. at p. 22.) She agreed that she had received all of OCY's medical and social history records and that it was her desire to adopt Brittany. (Id. at 22, 25.) She denied being induced, forced or pressured by anyone to enter into the adoption and agreed that it was a knowing and voluntary decision on her part. (Id. at pp. 25-26.)
As the foregoing events demonstrate, there were many individuals who had contact with Brittany, her biological family, and/or her prospective adoptive family between April 22, 1999, when she was declared a dependent, to August 22, 2001, when she was finally adopted by Iarussi. The record includes deposition testimony from many of these individuals.
One such person was Baldwin, who served as a CASA for Brittany and her biological siblings. (Defs.' Ex. 5 [77] at 10.) She was specifically assigned to Brittany's case from April 22, 1999 to May 7, 2001. (Id. at pp. 2-3, 10-12.) As the CASA, Baldwin had access to all of Brittany's court, medical, and school records. (Id. at pp. 4, 20.) In the course of her duties, Baldwin sometimes spent 20 to 25 hours per week working on Brittany's case. (Id. at pp. 6, 20.) She reviewed all of the records on file at OCY concerning Brittany's family, attended doctors' appointments with Brittany and her siblings, and also visited the psychologist's office. (Id.) At times she spoke with health care providers; sometimes she simply reviewed their charts. (Id. at p. 6.) Because Baldwin was part of the Wraparound Team, she also had access to all of the team's records. (Id. at pp. 8-9; Defs.' Ex. 17 [89] at pp. 14-16.) After Iarussi was identified as a possible placement source for Brittany, Baldwin became acquainted with her through various meetings, such as family visits and Wraparound Team meetings. (Defs.' Ex. 5 [77] at p. 8.) During the course of her appointment as CASA, Baldwin had numerous occasions to observe Brittany and to discuss with her how she felt and how she was doing, both in school and in Iarussi's home. (Id. at pp. 9-10.)
As CASA, it was Baldwin's duty to act as the child's voice in court and report to the court concerning what she believed to be in Brittany's best interests. (Defs.' Ex. 5 [77] at p. 4.) At no point during her service as CASA did Baldwin believe that Brittany was at risk for physical harm within Iarussi's home. (Id. at pp. 21-22.) Quite to the contrary, Baldwin consistently supported Brittany's placement there, as is evident from the letters she wrote to the juvenile court. Moreover, Baldwin could not recall anyone on the Wraparound Team ever raising concerns for Brittany's safety in the Iarussi home, nor did she recall Brittany's biological mother raising such concerns. (Id. at p. 22.)
Baldwin stated at her deposition that she could not recall being informed about Iarussi's refusal to allow the release of her mental health treatment records and she denied having seen Badach's kinship care profile on Iarussi. (Pls.' Ex. Vol. 1 [116-1] at pp. 30, 32.) Although she could understand why some people are reluctant to sign consents concerning their mental health treatment, due to the stigma surrounding mental illness, Baldwin felt that a person seeking to adopt a child should sign those consents. (Id. at 31.) While she felt that Badach's study contained important information, she was not sure that she would have included any of that information in her own report to the juvenile court. (Id. at 32.)
Another individual who had substantial contact with Brittany during this time was Szklenski. Szklenski provided ongoing services to Brittany from 1999 until May of 2001 through the Sexual Abuse Initiative. In addition, Szklenski was the facilitator of the Wraparound Team that was providing coordinated intervention for Brittany and her biological family. In these capacities, Szklenski had frequent contact with Brittany, sometimes on a weekly basis. (Defs.' Ex. 17 [89] at pp. 2-12.) Between June of 2000, when Brittany began living with Iarussi on a full-time basis, and May 2001, when Szklenski's involvement ended, there were several team meetings which included discussions about Brittany's placement in the Iarussi home. (Id. at pp. 10, 12.)
Szklenski noted that, during this period, Brittany was progressing well academically and socially at her middle school. (Ex. 17 [89] at p. 24.) No concerns were raised by Brittany's counselors at Rape Crisis
Though Szklenski did feel that the developing conflict between Brittany's mother and Iarussi might be emotionally detrimental to Brittany, Szklenski did not necessarily consider this situation to be unsafe or abusive, and she noted in her court summary that the two women had undertaken counseling to improve their relationship. (Ex. 17 [89] at 30-32.) In addition, Szklenski's concerns about Iarussi's emotional stability (which had led Szklenski to inquire in early 2001 about whether Iarussi should undergo a psychological evaluation) began to diminish, particularly after the issue of parental rights was resolved and the case moved toward adoption. (Id. at 58, 60-62.) At no point following her October 2000 court summary did Szklenski feel the need to contact the court, or any of the lawyers, in order to express concerns about Brittany's placement with Iarussi. (Id. at p. 42; Pls.' Ex. Vol. 1 [116-1] at p. 39.) At no point during her involvement with Brittany, even when Iarussi appeared angry and agitated, did Szklenski feel that Brittany was at risk of physical harm in Iarussi's home. (Defs.' Ex. 17 [89] at pp. 50, 54.)
Sherry Lacey was another individual who had contact with Brittany through the Wraparound Team. As a Supports Coordinator for the Mental Retardation Base Service Unit, it was Lacey's job to ensure that Brittany and her family were introduced to the appropriate mental retardation and mental health services available in the community. (Defs.' Ex. 14 [86] at p. 4.) Although Lacey recalled some team meetings where members discussed the possibility of Brittany being placed permanently with Iarussi, Lacey did not recall any discussions where concerns were raised regarding Brittany's safety in that environment. (Id. at p. 6.) In fact, Lacey's own personal impression based on her interactions with Brittany and Iarussi was that "Brittany seemed happy to be there. Lisa appeared to genuinely care about her." (Id. at p. 12.) Lacey never had any concerns for Brittany's welfare while in Iarussi's home. (Id.)
Donna Ziegler conducted a psychological evaluation of Brittany in November of 2000 for the purpose of making a recommendation to the court about Brittany's "dispositional" options. (Defs.' Ex. 25 [97] at pp. 2-3.) At that point in time, Brittany had been living with Iarussi for nearly five months. Dr. Ziegler found no indications that Brittany was suffering any type of abuse at the hands of Iarussi and, quite to the contrary, Dr. Ziegler formed the impression that Brittany was making a very good adjustment. (Id. at pp. 8, 10.) There was no evidence, in Dr. Ziegler's opinion, that Brittany was being victimized in any way at the time that she was evaluated. (Id. at pp. 16-17, 24-26.) Based on
Brittany had also undergone two psychological evaluations conducted by Martha Eichenlaub, a certified school psychologist, for the benefit of Family Services, in February and September of 2000. The latter evaluation was conducted after Brittany had begun living full-time with Iarussi. In rendering her own professional opinions about which placement arrangement would best suit Brittany's emotional and psychological needs, Dr. Ziegler considered and relied upon the Eichenlaub's reports, neither of which had expressed any concern about physical abuse or bad parenting on the part of Iarussi. (Ex. 25 [97] at pp. 10, 24-26, 34-36.)
Ann Badach was retained by OCY in April of 2000 to perform a study of the Iarussi home as a possible placement resource. Based on her assessment, which included detailed interviews with Iarussi in her home, criminal background and ChildLine checks, and references obtained from family and friends, Badach had no personal fears about this placement option for Brittany, nor any concerns that Iarussi would be a source of danger to Brittany. (Defs.' Ex. 2 [74] at pp. 18-20.) At the time that her report was completed, no concerns had been expressed by anyone about Iarussi being abusive. (Id. at pp. 24-26.) Badach did have some concerns about certain "unknowns" relative to Iarussi's personal issues, and she therefore recommended that Iarussi continue with the therapy she had recently undertaken relative to issues of self-esteem and goal setting. (Id. at p. 28.) Moreover, in light of Brittany's past history of sexual victimization, Badach further recommended that Brittany and Abby have certain boundaries such as separate rooms. (Id.) However, these concerns were not enough to give Badach any reservations about Brittany's placement in Iarussi's home. (Id. at pp. 28.)
Defendant Gallagher was Brittany's OCY caseworker from December 1998 until April of 2001 when the case was transferred to Hughes. (Defs.' Ex. 9 [81] at pp. 2-4; Defs.' Ex. 29 [101] at p. 7.) During this time Gallagher met with Brittany at least on a monthly basis. (Defs.' Ex. 29 [101] at p. 7.) These meetings occurred at various locations—initially in the home of Brittany's father when she was still living there, later in Brittany's foster home and then in Iarussi's home, and also at various other places such as the Mercy Center for Women, Wraparound Team meetings, parent/child visitation sites, and school. (Id.) During these meetings, various other people were commonly present, including Brittany's foster parents, Wraparound Team members, Mercy Center staff, and Brittany's CASA. (Id.)
Gallagher also had contact with Iarussi beginning in early 2000 both in Iarussi's home and at the Mercy Center for Wraparound Team meetings. (Defs.' Ex. 29 [101] at p. 8.) Following Brittany's placement with Iarussi in June of 2000, Gallagher made monthly in-home visits there. (Id.)
As part of her duties, Gallagher was involved in investigating the allegations of sexual abuse which Brittany disclosed relative to her father. (Defs.' Ex. 29 [101] at p. 9.) These reports led to involvement on the part of law enforcement agencies. (Defs.' Ex. 24 [126] at ¶¶ 9, 13-14.) Gallagher
Gallagher did not view Badach's report as revealing anything that suggested Iarussi was unfit to be a kinship care provider or potential adoptive parent to Brittany. (Defs.' Ex. 9 [81] at p. 28.) Moreover, no comments were ever made during Gallagher's conversations with Badach and her supervisor that indicated concerns on the part of Family Services about Brittany's placement with Iarussi. (Id. at pp. 28-29.) In fact, Gallagher has testified that, from the time that Brittany was first placed with Iarussi in June of 2000 until Brittany's case was transferred to Hughes in April of 2001, there were never any reports, to her knowledge, from ChildLine, other OCY workers, members of the Wraparound Team, the court, Brittany's school, or any other source indicating that Brittany was being abused in Iarussi's home. (Id. at pp. 39-40.)
Gallagher does acknowledge that, during the latter part of 2000, there was some disagreement among the Wraparound Team members as to whether or not reunification efforts should continue to be pursued or whether, instead, there should be a move toward an involuntary termination of rights from Brittany's parents. However, this dispute was aired before the juvenile court, which held its decision in abeyance pending the results of Dr. Ziegler's psychological evaluation. (Defs.' Ex. 9 [81] at pp. 30-35.)
Plaintiff Victoria Hayes is the sister of Lisa Iarussi and one of the individuals who provided a reference to Badach strongly supportive of Iarussi's efforts to become Brittany's caregiver. She contends that she provided the reference as a result of having been pressured by Iarussi and because she believed Iarussi was honestly trying to provide a better home for Brittany and was only seeking fair compensation and financial support for care-giving duties which she had been regularly providing anyway. (Pls.' Ex. Vol. 2 [116-2] at pp. 7-8, 11; Defs.' Ex. 12 [84] at pp. 3-4.) In filling out the questionnaire form entitled "Kinship/Foster-Adoption Reference," Hayes insists that she believed her sister's goal was merely to provide foster care for Brittany, not undertake an adoption. (Pls.' Ex. Vol. 2 [116-2] at 9-11.)
Hayes claims that she did not lie about anything in providing a favorable recommendation for her sister, but she may have "exaggerated a little bit with the pressure from my sister on me constantly." (Id. at p. 8.) Hayes states she did not really get along with Iarussi, whom she did not see often and whom she described as "an off the wall person," but "not with a child." (Pls.' Ex. Vol. 2 [116] at p. 7, 9.) Although Hayes believed her sister was "good with children," she did not take her own children over to Iarussi's home because she felt Iarussi had weird friends and was loud and would swear. (Defs.' Ex. 12 [84] at 2, 4.) When questioned how anyone would have known that Brittany's arrangement with Iarussi would have ended so tragically, Hayes replied, "Probably all her friends would know. The people that she had were terrified of her." (Id. at p. 6.) Yet, Hayes denies having personally had any concerns about physical violence in Iarussi's home at the time she provided her favorable reference, or even when Brittany was adopted in 2001, because Hayes "never knew anything that was going on over there." (Id. at p. 4; id. at p. 8.) She further admits that she never raised any concerns in May of 2000 when she wrote her evaluation, or in 2001 when she was called upon to support the adoption, about the possibility of Iarussi perpetrating physical violence on Brittany. (Id. at 10.)
Rosemary Burroughs is the biological maternal grandmother of Brittany and was sometimes present at meetings of the Wraparound Team. She has provided an affidavit in support of the Plaintiffs' brief opposing summary judgment.
Burroughs maintains in her affidavit that OCY "pressured Brittany's mother... to give up her parental rights to Brittany" and "pushed for Iarussi o become Brittany's mother by adoption." (Pls.' Ex. Vol. 3 [116-3] at p. 36, ¶¶ 3-4.) Burroughs claims that "[she] was against the adoption" and that she "knew Lisa Iarussi had a violent temper and a bad reputation for violence, including she beat up the sister of a news woman who was on WSEE TV-Channel 35." (Id. at p. 36-37, ¶¶ 5-6.) Moreover, Burroughs claims that she was ignored by the Agency after "[telling] workers on Brittany's case that I was against Iarussi adopting Brittany, that I was afraid for Brittany's safety and I told them I wanted to be involved so I could be a watchdog for Brittany's safety." (Id. at p. 37, ¶¶ 7-8.)
Despite the notation in Badach's study that Iarussi had revoked her consent to release records from St. Vincent Behavioral Health, no efforts were made by Badach, OCY personnel, or anyone else to further investigate this aspect of Iarussi's profile. Had the records been uncovered, they would have revealed that, beginning in March of 2000, just months before Brittany was placed full-time in her care, Iarussi began receiving counseling for an explosive anger problem which involved both verbal outbursts and, at times, physical violence. (See generally Pls.' Ex. Vol. 4 [116-4] at pp. 3-22.) The records further reflect that Iarussi demonstrated poor stability and an unwillingness to take responsibility for her actions. (Id. at pp. 18-21.)
Iarussi claims that she told Gallagher that she did not believe herself capable of parenting a special needs child because of her own special needs. (Pls.' Ex. Vol. 3 [116-3] at p. 45.) According to Iarussi, "I was on disability and I had issues of my own," yet "[Gallagher] never questioned.... Nobody in Children Services ever asked me why I was on disability." (Id.) As Iarussi sees it, the "bottom line" is that
(Id. at p. 46.) Despite Iarussi's alleged reservations about adopting Brittany, however, she never expressed any concerns to the orphans' court judge; on the contrary, she affirmed to the court that her adoption of Brittany was a knowing and voluntary decision and that no one had forced her or pressured her into the decision in any way.
On April 29, 2003, some twenty months after Brittany's adoption, a staff member from her middle school called the Pennsylvania Department of Public Welfare ChildLine to report concerns about bruising on Brittany's body. The matter was classified as a General Protective Services ("GPS") referral and forwarded to OCY for follow-up. (Pls.' Ex. Vol. 5 [116-5] at p. 20.)
OCY staff member Pam Bruno screened the referral, documenting the following allegations:
(Pls.' Ex. Vol. 5 [116-5] at p. 13.)
The matter was assigned to OCY caseworker Jim Place for investigation. On April 30, 2003, Place spoke with the guidance counselor at Brittany's school and learned that Brittany had originally told the counselor that she had fallen off her bike. The counselor further reported that Brittany's mother was "irate" that the school had interviewed her about the bruises. (Pls.' Ex. Vol. 5 [116-5] at p. 14.) Place then examined Brittany while she was at school and documented faded bruises on her right cheek, back, shoulder blades, and left arm, which he photographed. At that time, Brittany denied knowing how she had gotten the bruises and specifically denied receiving any corporal punishment. She reported to Place that she felt safe at home and that, when she gets in trouble, she gets sent to her room. She further claimed that she had missed the prior four days of school due to the flu. (Pls.' Ex. Vol. 5 [116-5] at pp. 14,16.)
Place next interviewed Abby Iarussi while she was at school.
Later that day, Iarussi called Place to report that she did not want OCY to have
On June 11, 2003, Place completed a risk assessment of the referral and closed the file. Although he felt that Abby and Brittany were "moderately" vulnerable to abuse or neglect, he assigned an overall risk analysis of "low," which he explained as follows:
(Pls.' Ex. Vol. 5 [116-5] at pp. 16-17.) Place's risk assessment was reviewed and approved by his supervisor, Defendant Edith Joseph. (Id. at pp. 15, 17.)
The same day that Place closed OCY's file, he and Joseph co-signed a letter to Iarussi, stating that Place had completed his evaluation of the April 29 referral and had determined that it was not necessary for Iarussi's family to receive ongoing services from OCY at that time. (Pls.' Ex. Vol. 5 [116-5] at p. 11.) The letter indicated that, in the event new allegations were to be received by OCY, an intake specialist would be assigned to evaluate them, and it invited Iarussi to contact the agency if she felt that OCY could be of assistance in preventing the abuse or neglect of her children. (Id.)
Approximately seven months later, on January 5, 2004, OCY caseworker Isabelle Wolf received an anonymous call from Cynthia Matecki, a teacher's aide at McDowell Intermediate High School, where Brittany was attending a life skills class. According to Ms. Wolf's notes, this "referral source" stated that Brittany had a split lip, redness in her eyes, and cuts
The following day, another OCY employee, Pam Bruno, telephoned Nancy Carlson, the school nurse at McDowell Intermediate. At that time, Carlson reported that Brittany had a problem biting her lips as well as an ongoing problem with bruises. The previous day (January 5), Brittany had been observed to have bruising on the bridge of her nose and red eyes. When asked about her injuries, Brittany claimed that she had been playing football and had gotten hit in the face. Carlson called Iarussi and was told the same story. Later that same day, it was brought to Carlson's attention that Brittany also had a cut and bruising behind her ear. After discovering this new injury, Carlson had called Iarussi again and told her that she would have to take Brittany for medical treatment. (Pls.' Ex. Vol. 2 [116-2] at p. 34.) Documentation in the record indicates that Iarussi took Brittany to the Hamot Hospital Emergency Room on January 5, where she was given a prescription for an antibiotic; the prescription was filled that same day. (Id. at pp. 23-24.) Bruno's notes from the January 6 telephone call reflect that Iarussi had informed Carlson that Brittany was anemic and was taking iron to address this problem. The notes further reflect that Carlson had informed Iarussi that she wanted documentation of the ER visit and Iarussi had agreed to provide it. (Pls.' Ex. Vol. 2 [116-2] at p. 34.)
After discussing this incident with her supervisor, Bruno advised Carlson that the Agency also wanted a copy of the documentation; this was faxed to OCY within a day or so thereafter. (Defs.' Ex. 7 [79] at pp. 2-4.) Following this, the matter was "screened out" by the agency, meaning it was not accepted for further evaluation. (Id.) Although Wolf's notations on the screening form indicated that there had been a prior "intake" concerning Brittany in 2003, it does not appear that Bruno ever reviewed that referral prior to deciding to "screen out" the January 5, 2004 call. Bruno could not remember personally pulling the 2003 file, and there is no notation by her to suggest that she ever did. (Id. at 3.)
The following month, OCY received another referral concerning Brittany, this time from Karen Staab, the school district's psychologist. Pam Bruno screened the call, which came in on February 26, 2004, and supplied the following narrative:
(Defs.' Ex. 8 [80] at p. 8.) Bruno classified the referral as being low risk, and the matter was assigned to Advanced Intake Specialist Cynthia Valimont for further investigation. (Id. at p. 7.)
On March 4, 2004, Valimont telephoned McDowell Intermediate to confirm Brittany's attendance there. A school official confirmed that Brittany did attend a life skills class but indicated that she was absent that day. (Defs.' Ex. 23 [95] at ¶ 3, p. 3; Pls.' Ex. Vol. 3 [116-3] at p. 2.)
The following day, which was Friday, March 5, 2004, Valimont called the school a second time in an attempt to make arrangements to see Brittany there. Valimont was informed that Brittany was again absent. (Defs.' Ex. 23 [95] at ¶ 3, p. 3; Pls.' Ex. Vol. 3 [116-3] at p. 2.) Valimont then made an unannounced visit to Brittany's home and was greeted by an adult woman who identified herself as "Linda" and stated that she was house-sitting for Iarussi. Linda advised Valimont that the family had gone to Pittsburgh to visit a relative who was ill and they were expected to return on Monday, March 8. Valimont left her card with Linda to be forwarded to Iarussi upon her return. (Defs.' Ex. 23 [95] at ¶ 3, p. 3; Pls.' Ex. Vol. 3 [116-3] at p. 2.)
Later that day, Valimont's intake supervisor, Defendant Joseph, received a call from Iarussi, who reported that she had gotten a call from Linda about the home visit. Iarussi stated that she was calling from Pittsburgh where she and the children had gone to visit Abby's father, who was reportedly dying of a liver disorder. Iarussi expressed surprise at the referral and stated that she would meet with someone as soon as she returned. (Defs.' Ex. 23 [95] at ¶ 3, p. 3; Pls.' Ex. Vol. 3 [116-3] at p. 2.)
On either March 6 or March 8,
On or about March 9, 2004, Valimont conducted a visit to Iarussi's home.
(Defs.' Ex. 23 [95] at ¶ 3, pp. 3-6.)
Valimont's account is contradicted in certain respects by Sue Vanorsdale,
(Defs.' Ex. 37 [109] at pp. 4-5.) At her deposition, Vanorsdale was questioned repeatedly as to whether Iarussi had made the foregoing remarks in the presence of Valimont. Ultimately, however, Vanorsdale was not sure whether Valimont had been present at the time these comments were made. (Defs.' Ex. 36 [108] at pp. 9, 12, 15-16.)
On March 9, 2004, Valimont received a telephone message from Carlson that Brittany's teacher at McDowell Intermediate would be calling with concerns about Brittany—specifically, that Brittany had returned to school with some changes in her behavior and appearance after having been out the previous week. (Pls.' Ex. Vol. 3 [116-3] at pp. 4-5). Valimont subsequently received a message to contact Regina Kukolen, Brittany's speech therapist. Ms. Kukolen saw Brittany every Monday and Tuesday for 30 minutes. When Valimont contacted her, Ms. Kukolen reported that Brittany had been very lethargic the previous day and had slept through both of her speech therapy sessions. She had dark circles under her eyes and her lips were split open. Valimont did not consider these reports to be new concerns. (Id. at p. 5; Defs.' Ex. 23 [95] at ¶ 3, p. 7.)
The following day, March 10, 2004, Valimont received a call from Brittany's teacher, Karen Halmi. What happened during the course of this telephone call is somewhat disputed. According to Valimont, Ms. Halmi reported that Brittany had had 30 absences from school, all of which had been excused, some of which were medical. Valimont also recalls Halmi reporting that Brittany had had an enormous appetite that day and was refusing to participate in pool class. According to Valimont, she and Halmi discussed the follow-up measures that were planned for Brittany regarding allergy testing and a psychiatric evaluation, and it was agreed that Halmi would report any further concerns. (Pls.' Ex. Vol. 3 [116-3] at p. 6; Defs.' Ex. 23 [95] at ¶ 3, p. 7.) According to Halmi, Valimont made comments in the course of this conversation to the effect of, "how would I feel if someone kept calling Child Services on me ... and did I know how hard it was to find placement for these kids," which left Halmi feeling "threatened." (Pls.' Ex. Vol. 3 [116-3] at pp. 20-21.)
About one month later, on Monday, April 19, 2004, a member of Brittany's school bus staff called the ChildLine to report that, when Brittany had gotten on the bus that morning, she had swollen lips with dark scabs. The caller noted that Brittany is frequently absent for a week and then when she gets back on the bus she has marks. Upon speaking with Brittany's teacher and the school nurse, he had been told to call the ChildLine. The source was unsure if the school nurse had examined Brittany. The call was categorized as a General Protective Services call and referred to OCY. (Pls.' Ex. Vol. 3 [116-3] at pp. 33-34.) Pam Bruno screened the referral, which was acknowledged by Defendant Joseph, and it was forwarded to Defendant Valimont. (Id. at p. 35.)
That same day, Valimont left a message for Iarussi inquiring about follow through on the planned allergy testing and psychiatric evaluation for Brittany. Valimont also requested a second home visit to discuss the reported concerns about new scabs around Brittany's mouth. (Pls.' Ex. Vol. 3 [116-3] at p. 6; Defs.' Ex. 23 [95] at ¶ 3, p. 7.)
Although the parties disagree somewhat as to the details of what occurred over the course of the ensuing week, it is undisputed that Valimont initially undertook steps to arrange a meeting between school officials and Iarussi regarding concerns about Brittany. OCY's contact log suggests that Valimont initially spoke with a person named "Meagan" in student services on Thursday, April 22, 2004 requesting, on behalf of herself and Iarussi, a meeting with Brittany's teacher and guidance counselor for the purpose of discussing Brittany. (Pls.' Ex. Vol. 3 [116-3] at p. 6; Defs.' Ex. 23 [95] at ¶ 3, p. 8.) It appears Valimont received a message the following day from Brittany's teacher, Karen Halmi, indicating that the school personnel could meet on April 28 at 8:00 a.m. and requesting that Valimont call back to confirm the tentative date and time. (Pls.' Ex. Vol. 3 [116-3] at p. 7; Defs.' Ex. 23 [95] at ¶ 3, p. 8.) Halmi contends that she indicated in a message to Valimont that she wanted "the people on [her] team" there as well. (Pls.' Ex. Vol. 3 [116-3] at p. 25, 27.)
Valimont then contacted Iarussi on Sunday, April 25, 2004 to advise her about the meeting planned for that Wednesday, April 28, at which time Valimont was informed by Iarussi that Iarussi had already met with school personnel, on her own, the previous Wednesday, April 21.
During the course of this April 25 conversation, Iarussi further informed Valimont that Brittany had fallen over the handlebars of her bike the previous evening (April 24) and had required stitches to her lip. According to Valimont, Iarussi claimed that she and her friend, Linda Fisher, had tried to treat the bleeding at home with ice and compresses but had eventually taken Brittany to St. Vincent Emergency Room when they could not stop the bleeding. Iarussi identified Dr. Anderson as the treating physician. In discussing this incident, Valimont inquired about "Linda," whom Iarussi had sometimes referred to as a "roommate" and sometimes as a "friend." Iarussi stated that Linda was a close friend who often stayed at the home but maintained her own residence across the street and that she was very involved with the children, as she had none of her own. Valimont claims that, during this conversation, she suggested that Iarussi call Brittany's school to apprise them of the bike accident so they would be aware of this injury, and Iarussi agreed. (Pls.' Ex. Vol. 3 [116-3] at p. 8; Defs.' Ex. 23 [95] at ¶ 3, p. 8.)
On the following day, Monday, April 26, Valimont received a message from McDowell Intermediate indicating that the meeting for Brittany was scheduled for Wednesday, April 28 at 8:00 am in the guidance office. Valimont's log indicates she attempted to return the call and got no answer. (Pls.' Ex. Vol. 3 [116-3] at p. 8; Defs.' Ex. 23 [95] at ¶ 3, p. 8.)
Valimont telephoned Halmi the next day, April 27, 2004, concerning the meeting which had originally been set for April 28. The timing and specifics of this conversation are somewhat disputed. According to Valimont, Halmi indicated during this contact that school officials had already met with Iarussi, they were satisfied with the results of the meeting, they had developed a plan for the principal to contact Iarussi with further concerns, and another meeting with Valimont present was therefore unnecessary. Valimont claims she concurred with Halmi's analysis that no additional meeting was necessary, and that no objection was ever raised by school personnel regarding the cancellation of the April 28 meeting. (Defs.' Ex. 23 [95] at ¶ 3, p. 9.) According to Halmi, Valimont contacted her at some point between April 22 and April 28 and unilaterally decided to cancel the April 28 meeting, to which Halmi replied "okay" merely as a way of "acknowledging th[e] fact that she was canceling." (Pls.' Ex. Vol. 3 [116-3] at pp. 25-26.)
In addition to the reports and referrals outlined above, numerous calls were allegedly made to OCY by Cynthia Matecki, a special education assistant at McDowell Intermediate High School. In her capacity as a teacher's aide, Matecki worked with Brittany about four hours each day. (Pls.' Ex. Vol. 4 [116-4] at p. 24 ¶¶ 2-3.)
Matecki witnessed a pattern of Brittany being bruised often, having make-up applied over the bruising, making excuses about the bruising, and missing school often. Matecki observed that this bruising got worse, and Brittany became more withdrawn, toward the end of her life. (Pls.' Ex. Vol. 4 [116-4] at pp. 24-25, ¶¶ 7,
Matecki felt that there were "many red flags" indicating that Brittany was being abused. (Pls.' Ex. Vol. 4 [116-4] at p. 26, ¶ 32.) According to Matecki, there were so many incidents with Brittany during April-May of 2004 that Matecki wound up making repeated calls to OCY to report that "the beatings were getting worse and that [Brittany] had a cauliflower ear all year." (Id. at p. 25, ¶ 19.) In fact, Matecki contends that she called OCY on five separate occasions between January of 2004 and late April/early May of 2004. (Id. at p. 25, ¶ 18.) During these calls, Matecki "directly stated' her opinion "that Lisa Iarussi was abusing Brittany Legler." (Id. at p. 26, ¶ 23.) She was told by OCY personnel that "it was an ongoing investigation" and that they could not give her any information. (Id. at p. 26, ¶ 21.) By the third or fourth time she called OCY, Matecki became irritated that the agency, in her opinion, was "apparently doing nothing." (Id. at p. 26, ¶ 25.) By the fifth call, she claims, "OCY personnel sounded as if they were agitated at me." (Id. at ¶ 26.) Matecki avers that she "said to Erie County OCY when are you going to take her out of the house which irritated the Erie County OCY person to whom I was reporting my concerns about Brittany's physical welfare." (Id. at ¶ 27.) Despite her many calls to OCY expressing her concerns about Brittany's well-being and her suspicion that Brittany was being abused, no one from OCY ever called her, interviewed her, or came to the school to meet with her. (Id. at p. 26-27, ¶ 33.)
Instead, on April 27, 2004, Valimont met with her intake supervisor, Defendant Joseph, for about ten minutes to review the case. (Defs.' Ex. 22 [94] at p. 2.) Despite the fact that state regulations required a written risk assessment to be completed, this was not done. Instead, Valimont claims, she and Joseph verbally discussed the risk assessment factors and decided to close the case. (Id.) According to Valimont, she recommended closure of the case because physical abuse had been denied by Brittany and Iarussi, Brittany' health problems were being addressed, Iarussi had met with school personnel to address their concerns and Brittany's educational needs, Brittany's basic needs were being met, and there were no current, apparent child welfare issues outstanding. (Defs.' Ex. 23 [95] at ¶ 3, p. 9.) Plaintiffs maintain that school personnel were never informed that OCY's file was being closed.
Twelve days later, on May 9, 2004, Brittany died after an abusive episode in which Iarussi and her partner Linda Fisher forced Brittany lie between two bed mattresses and then proceeded to jump on Brittany while taunting her. (Pls.' Ex. Vol. 3 [116-3] at ¶¶ 20-21, pp. 37-38.) According to the affidavit submitted by Abby Iarussi,
The formal cause of Brittany's death was found to be "Cardiac Arrhythmia due to Myocardial Ischemia due to Hypoplasia of [the] Right Coronary Artery with stress
Despite having received releases on or around March 9, 2004 to obtain Brittany's medical records from Dr. Fornelli and Children's Healthcare West, Valimont did not send out the authorizations to these providers until May 13, 2004. (Pls.' Ex. Vol. 4 [116-4] at pp. 33, 41-42.) That same day, which was four days after Brittany's death and sixteen days after OCY had closed its file, Valimont completed a written "Interim Risk Assessment" at the direction of Robin Adams, then OCY's Director of Policy and Evaluation. (Pls.' Ex. Vol. 4 [116-4] at p. 43; Defs.' Ex. 1 [73] at pp. 2-3.) Valimont's Risk Assessment, which was approved by Defendant Joseph, rated Brittany's overall risk as "low." (Pls.' Ex. Vol. 4 [116-4] at pp. 43-44.) According to Valimont, the low risk assignment was based on preliminary reports from law enforcement indicating that Iarussi, Linda Fisher, and Abby had all claimed that Brittany had died as the result of an accidental fall in which Brittany had hit her head;
In 2005, the Pennsylvania Department of Public Welfare conducted an investigation into OCY's handling of Brittany's case. The Department found that OCY had violated at least four different provisions of the Pennsylvania Administrative Code, as follows:
* 3490.232(d)(1)(2)(3) In the case under review a Risk Assessment was not completed,
according to the agency record, until May 13, 2004. This was 16
days after the worker and supervisor had made a decision to close
the case at intake on April 27, 2004. These regulations require
that the county agency shall use a State-approved risk assessment
process to:
1. Aid in its assessment of whether to accept the family for
services.
2. Insure that its assessment is comprehensive.
3. Help determine the need for general protective services.
* 3490.232(e) In the case under review the agency failed to complete its assessment
to determine whether or not the child and family should be
accepted for GPS within the required sixty day time framework
required by this section of the regulations.
* 3490.232(g) In the case under review the assigned worker did not confirm
observations/assumptions made during the course of the agencies
[sic] evaluation of the case by making the appropriate collateral
contacts. This section of the regulations specifies that ... "the agency shall also conduct interviews with those persons who are known to have or may be reasonably be [sic] expected to have information that would be helpful to the county agency in determining whether or not the child is [in] need of general protective services." In this case, the assigned worker had no direct contact with several medical providers, the MR BSU, the MH BSU, as well as school staff who had direct knowledge of the child referred for services. * Chapter 3130.21(b) The case under review did not contain a safety plan for the child referred for service from the point of referral to case closure. The record does not specify what factors or issues were assessed in determining that the children remained safe while residing in their home. The case file contents were not reflective of the mandates of OCYF Bulleting # 3490-00-02 Safety Assessment and Safety Planning.
(Pls.' Ex. Vol. 3 [116-3] at pp. 30-32.)
In 2006, Iarussi's sister, Victoria Hayes, and her husband Charles, acting as the administrators of Brittany's estate, commenced this lawsuit, naming as Defendants OCY, Gallagher, Vallone, Hughes, Valimont, Joseph, Debbie Leasure (an intake screening supervisor for OCY), Robin Adams (OCY's Director of Policy and Evaluation) and Debra Liebel (Director of OCY). The complaint originally asserted federal claims under 42 U.S.C. § 1983 and state law claims under common law theories of negligence per se and gross negligence as well as the Pennsylvania Survival Act, 42 Pa.C.S.A. § 8302. In a memorandum opinion and order dated June 29, 2007, this Court dismissed the state law negligence claims and, in addition, dismissed the § 1983 claims in part.
Following extensive discovery, Defendants filed the instant motion for summary judgment. The issues have been briefed and argued and the Court has reviewed the rather extensive record in this case in its entirety. Accordingly, Defendants' motion is ripe for disposition.
Plaintiffs' federal claims in this case are brought under 42 U.S.C. § 1983, which provides a cause of action to:
42 U.S.C. § 1983. To prevail under 42 U.S.C. § 1983, a plaintiff must prove that s/he suffered the deprivation of a constitutional or federal rights by a person acting under color of state law. Mark v. Borough
As it is undisputed that all the named Defendants are state actors for purposes of § 1983, the focus here is on whether the evidence supports the existence of a constitutional tort. In Count I of the Complaint, Plaintiffs allege that all the named Defendants violated Brittany's right to substantive due process under the Fourteenth Amendment to the U.S. Constitution. Count II of the Complaint asserts a § 1983 claim against Defendants OCY, Liebel, Adams, Leasure, and the "other individual Defendant supervisors" premised on their alleged failure to properly train and supervise the other individual Defendants in their handling of Brittany's case. Count V of the Complaint asserts a § 1983 claim against OCY and Defendant Liebel based on a theory of municipal liability. We will address each claim in turn.
The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. Thus, individuals have a constitutional liberty interest in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment. Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir.2008).
Under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), however, the Due Process Clause does not generally impose upon the state an affirmative obligation to protect its citizens from harm inflicted by private individuals. An exception to this general rule exists, nonetheless, under what is known as the "state-created danger" theory. Phillips, 515 F.3d at 235. This theory holds that government actors can be liable under § 1983 for private harm which befalls a citizen where "state authority is affirmatively employed in a manner that injures [the] citizen or renders him `more vulnerable to injury from another source than he ... would have been in the absence of state intervention.'" Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006) (quoting Schieber v. City of Philadelphia, 320 F.3d 409, 416 (3d Cir. 2003)). In Bowers v. De Vito, 686 F.2d 616, 618 (7th Cir.1982), a case which predates DeShaney, the Seventh Circuit Court of Appeals famously summarized the theory behind state-created danger liability by noting that, "[i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit." 686 F.2d at 618.
To establish a claim under the "state-created danger" theory in this circuit, the following elements must be shown to exist:
Bright, 443 F.3d at 281.
The first element—that the harm ultimately caused was foreseeable and fairly direct—necessarily entails allegations of "an awareness on the part of the state actors that rises to the level of actual knowledge or an awareness of risk that is sufficiently concrete to put the actors on notice of the harm." Phillips, 515 F.3d at 238. See also D.N. ex rel. Nelson v. Snyder, 608 F.Supp.2d 615, 625 (M.D.Pa.2009). In addition to the foreseeability component of the analysis, we must assess whether the harm "is a `fairly direct' result of the defendant's acts." Phillips, 515 F.3d at 239. "This inquiry essentially asks whether the alleged misconduct and the harm caused were "too attenuated" to justifiably hold the defendant liable." D.N. ex rel. Nelson v. Snyder, 608 F.Supp.2d at 625 (citing Phillips, supra, at 238).
With respect to the second element of the "state-created danger analysis," to wit, that the state actor act with a degree of culpability that "shocks the conscience," the "exact degree of wrongfulness necessary to reach the `conscience-shocking level depends upon the circumstances of a particular case.'" Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.1999). Where a state actor has the time to deliberate about his actions and is not under pressure to make hurried judgments, the state actor's conduct will be sufficiently "conscience shocking" if it displays a deliberate indifference toward a substantial risk of serious harm to the plaintiff. See Navolio v. Lawrence County, 406 Fed.Appx. 619, 624 (3d Cir.2011) ("In a case where state actors have the time to make unhurried judgments, the level of culpability required to shock the conscience is deliberate indifference.") (quoting Sanford v. Stiles, 456 F.3d 298, 309 (3d Cir.2006)).
The third element requires that the plaintiff show "a relationship between the state and the plaintiff" such that the plaintiff was "a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions." Smith, supra, at *6 (quoting Bright, 443 F.3d at 281). This requirement "contemplates some contact such that the plaintiff was a foreseeable victim of the defendant's acts in a tort sense." Id. (quoting Kneipp v. Tedder, 95 F.3d 1199, 1209 n. 22 (3d Cir.1996)).
The fourth element of the state-created danger analysis can be broken down into three necessary conditions, to wit: (i) a state actor exercised his or her authority; (ii) the state actor took an affirmative action; and (iii) this affirmative act created a danger to the citizen or rendered the citizen more vulnerable to danger than if the state had not acted at all. Ye v. United States, 484 F.3d 634, 639 (3d Cir. 2007); Bright, supra, 443 F.3d at 281-82.
The failure by a plaintiff to establish any of the foregoing elements will preclude a viable state-created danger claim. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 914 (3d Cir.1997) (for purposes of state-created danger claim, court did not need to decide whether the decedent and others who were present in school where decedent was fatally shot were a sufficiently discrete group of persons who could have been foreseeable victims of an armed and dangerous intruder, since plaintiff could not satisfy the remaining three elements of his claim); Smith v. School Dist. of Philadelphia, Civil Action No. 07-2080, 2009 WL 667455 at *3 (E.D.Pa. Mar. 10, 2009) ("A plaintiff's failure to satisfy any of the four elements defeats his state-created danger claim.") (citing Morse, supra). To avoid entry of a summary judgment in this case, therefore, Plaintiffs
In addition, each Defendant's potential liability must be predicated on the basis of his or her own personal knowledge and actions relative to Brittany's case, because liability under § 1983 cannot be premised on theories of vicarious liability or respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (noting that, because vicarious liability is inapplicable in a § 1983 suit, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution") (assessing a motion to dismiss under Fed.R.Civ.P. 12(b)). Accordingly, this Court will consider the sufficiency (or insufficiency) of the Plaintiffs' evidence as it pertains to the respective conduct of each named Defendant. Broadly speaking, the relevant conduct can be broken down into two discreet time periods involving two discreet sets of actors— a distinction which I will refer to as "pre-adoption conduct" and "post-adoption conduct."
As the Court's discussion of background facts demonstrates, Defendants Gallagher, Vallone, and Hughes collectively played a significant role in the events that led to Brittany's placement with, and ultimate adoption by, Lisa Iarussi. Each of these Defendants was involved in advocating Brittany's transfer from a foster care setting to the permanent care of Iarussi. With respect to these Defendants, then, the fourth element of the state-created danger analysis is satisfied because a jury could reasonably conclude that these Defendants affirmatively used their authority in a manner that ultimately made Brittany more vulnerable to danger than she would have been if they had not acted at all. Moreover, the third element is likely satisfied as well, since Brittany—a mentally challenged, sexually abused minor from a broken home—fell within a class of individuals uniquely vulnerable to harm at the hands of an abusive caregiver.
Nevertheless, having reviewed this record in its entirety, the Court is compelled to the conclusion that Plaintiffs' § 1983 claim against Defendants Gallagher, Vallone and Hughes cannot survive summary judgment inasmuch as Plaintiffs have failed to demonstrate the existence of a genuine issue of fact relative to the first two elements of their state-created danger theory. The lack of any genuine issue of fact as to elements (1) and (2) means that Plaintiffs' claims against these Defendants fails as a matter of law, and summary judgment in the Defendants' favor is therefore warranted.
The first element of the state-created danger theory requires a showing that the harm ultimately caused to the victim was foreseeable and fairly direct.
We consider first Iarussi's testimony that she made multiple phone calls to OCY, prior to January of 2004, indicating that she was in "over [her] head," that Brittany was "getting to be too much," and that she wanted OCY to "take her back because [she couldn't] do it." (Pls.' Ex. Vol. 3 [116-3] at p. 40.) According to Iarussi, "they kept telling me, oh, I'm sorry, Ms. Iarussi, you know,
More relevant for present purposes is Iarussi's testimony that "I told Carroll
In order to establish the foreseeability element of a state-created danger claim, however, the Plaintiffs must demonstrate "an awareness on the part of the state actors that rises to the level of actual knowledge or an awareness of risk that is sufficiently concrete to put the actors on notice of the harm." Phillips, 515 F.3d at 238. See also D.N. ex rel. Nelson v. Snyder, 608 F.Supp.2d 615, 625 (M.D.Pa.2009); Gremo v. Karlin, 363 F.Supp.2d 771, 784 (E.D.Pa.2005) ("A harm is foreseeable when a state actor has actual awareness, based on concrete information, of a risk of harm to an individual .... such that the actor is on notice that his or her act or failure to act significantly enhances that risk of harm."). Nothing in this record suggests that Gallagher, Vallone, or Hughes had actual knowledge of Iarussi's abusive nature during the time period leading to Brittany's adoption.
In addition, however, we find nothing in Badach's report or in Iarussi's alleged remarks to Gallagher showing that these Defendants had reason to know of a "concrete risk" that Iarussi would be physically abusive toward Brittany. Although Iarussi was known to be receiving benefits for an unspecified learning disability, and though she now professes that she told Gallagher she had (unspecified) "issues of her own" which she felt made her incapable of taking on a special needs child,
Significantly, this information was contained within a report that, on balance, painted a very favorable impression of Iarussi as a care-giver. Among other things, Badach's report indicated that Iarussi was a responsible and compassionate caregiver to her own four-year old daughter, she had a strong support network of family and friends to help her out, and her desire to care for Brittany appeared to be sincere and based on a long-term relationship with the child. All of the references whom Badach consulted were uniformly supportive of Iarussi's desire to provide kinship care for Brittany, and there no reports from law enforcement or ChildLine implicating Iarussi in any type of past criminal behavior or child abuse. When viewed in the context of Badach's entire report, the alleged "red flags" cited by Plaintiffs fail to establish any concrete basis for believing that Brittany would be subject to harm in Iarussi's home. Notably, Badach herself had no concerns about Brittany's safety in that environment.
Plaintiffs also rely on testimony from Szklenski to the effect that, in early 2001, she questioned Gallagher about whether Iarussi should undergo a psychological evaluation due to Iarussi's agitation and apparent instability. Again, however, this alleged "red flag" must be viewed in the context of other undisputed evidence. The record here reflects that Iarussi's agitation and instability were observed to occur in the context of a developing conflict between Iarussi and Brittany's natural mother concerning Brittany's placement. That conflict did not involve concerns about Iarussi's fitness to care for Brittany; rather, it concerned a rift that had begun to develop between the two women due to the fact that Iarussi was perceived to be judgmental about mistakes that Brittany's mother had made in the past and unsupportive of Brittany's relationship with her mother. According to Szklenski, this tension came to a head in the latter part of 2000 and early 2001 pending the court's permanency determination, but the two women agreed to undergo counseling to address their conflict, and the problem seemed to diminish after the issue of parental rights was settled. Thus, Szklenski came to view Iarussi's agitation and instability as a temporary, short-lived occurrence. Moreover, while Szklenski thought this tension might create stress for Brittany, she did not develop concerns about Brittany's safety during her placement with Iarussi. On the contrary, Szklenski specifically recalled having been asked by Gallagher whether it was her opinion that Brittany was in any kind of physical danger in Iarussi's home, and she replied that she did not believe so. According to Szklenski, Gallagher indicated that, if anyone on the Wraparound Team believed Brittany to be at risk of physical danger, then the concern should be expressed and OCY would act on it, but there is no indication in the record that such concerns were ever expressed by any of the team members.
Plaintiffs also rely on the affidavit of Rosemary Burroughs, Brittany's maternal grandmother, wherein Ms. Burrough states that she "told Erie County Office of Children and Youth workers on Brittany's case that I was against Iarussi adopting Brittany, that I was afraid for Brittany's safety and I told them I wanted to be involved so I could be a watchdog for Brittany's safety." Although it does not specifically say so, the affidavit may be fairly read as suggesting that Burroughs communicated to Gallagher, and perhaps others at OCY, that she knew Iarussi to
Even allowing this inference, however, the statements of Ms. Burroughs must be viewed in the context of other undisputed evidence showing that, by all accounts, Brittany was doing relatively well in the home of Iarussi prior to her formal adoption, and Iarussi appeared to be a responsible parent as well as a law-abiding citizen. As our outline of the background facts illustrates, there were a multitude of social services professionals who had contact with Brittany and/or Iarussi during this time. Szklenski met with Brittany regularly up until May of 2001 in connection with Brittany's Wraparound Team, sometimes on a weekly basis. In October of 2000 she reported to the juvenile court that Brittany was "safe and secure" in Iarussi's home; never did Szklenski indicate otherwise to OCY or the court. Despite her stated concerns about Iarussi's stability in early 2001, she never formed a belief that Brittany was in danger while under Iarussi's care. In face, she specifically denied having such concerns when asked by Gallagher. Sherry Lacey, another member of the Wraparound Team, could not recall any team meetings where concerns were expressed by a team member regarding Brittany's safety while in Iarussi's home, nor did Lacey have such concerns. Her own impression was that Brittany seemed happy to be living with Iarussi and Iarussi appeared to genuinely care about Brittany. Sheila Baldwin, who was Brittany's CASA during this time, likewise supported Brittany's placement with Iarussi; at no point during her appointment did she believe Brittany to be at risk of physical harm in that setting, nor could she recall such concerns being expressed either by Wraparound Team members or Brittany's biological mother, who was also represented by counsel.
Hayes maintains that she was pressured by Iarussi to provide the reference, but she does not deny that she painted a highly
In sum, given all of the information that was available to Gallagher, we do not believe that the evidence relied upon by Plaintiffs, even when construed collectively and in the light most favorable to them, is sufficient to support a finding of foreseeability. Simply stated, the undisputed evidence as a whole does not reasonably support the conclusion that the risk of harm which ultimately befell Brittany at Iarussi's hands was sufficiently "concrete," prior to her adoption, as to put Gallagher on notice of that harm.
Given that fact, foreseeability also cannot be shown with respect to Defendant Vallone, Gallagher's supervisor. The evidence submitted by the parties shows that Vallone had no greater involvement in Brittany's placement, nor access to any greater information, than Gallagher had. Since Gallagher cannot be found, on this record, to have had an awareness of a sufficiently concrete risk of harm to Brittany as would support liability under a state-created danger theory, the same holds true for Vallone.
Similarly, foreseeability of harm cannot be demonstrated with respect to Defendant Hughes, who replaced Gallagher in 2001 as the OCY case worker handling Brittany's adoption. The only additional evidence cited by Plaintiffs as it relates to Hughes concerns OCY's presumed failure to obtain an updated home study report and Hughes' alleged lack of familiarity with Brittany's case file.
Plaintiffs point to a July 31, 2001 order entered by the orphan's court which directed that a home study be performed and submitted to the court "to verify the statements of the [adoption] Petition and to provide such other facts as will give the Court full knowledge of the desirability of the proposed adoption." (Pls.' Ex. vol. 2 [116-2] at p. 32.) Notwithstanding this order, there is nothing in the record to confirm that an updated home study was ever obtained. When deposed, Hughes could not recall whether Badach's home study was ever updated, nor could he recall whether he ever read Badach's original home study. He testified that,
(Pls.' Ex. Vol. 2 [116-2] at p. 30.) Presumably, Hughes' assumption that updated clearances were obtained was based on the fact that Brittany's adoption was approved just weeks following the court's July 31, 2001 order.
Nevertheless, assuming for the sake of argument that OCY never obtained an updated home study—or at least updated clearances—for Iarussi, and assuming further that Hughes never reviewed Badach's original home study, these omissions do not have any material bearing on the issue of foreseeability. Specifically, OCY's failure to obtain an updated home study for Iarussi and/or Hughes' failure to review the original home study, if indeed such failures occurred, do not logically bolster the existence of a concrete risk of harm to Brittany, nor do they reflect an awareness on the part of the Hughes of such risk.
In the same vein, Hughes' statement at the August 22, 2001 adoption hearing that
Thus, this Court finds that the undisputed evidence of record cannot support a finding of a foreseeable risk of harm to Brittany prior to her adoption. For this reason alone, Plaintiffs' state-created danger claim based upon the pre-adoption conduct of Gallagher, Vallone and Hughes cannot survive summary judgment.
In addition to the lack of foreseeable harm, the record here cannot support an inference of deliberate indifference on the part of the Defendants who were instrumental in facilitating Brittany's placement with Iarussi. The Third Circuit has stated that, "in the state-created danger context, deliberate indifference may not require a state actor's actual knowledge of a risk of harm `when the risk is so obvious that it should be known.'" Navolio v. Lawrence County, 406 Fed.Appx. 619, 624 (3d Cir. 2011) (quoting Sanford v. Stiles, 456 F.3d 298, 309 (3d Cir.2006)).
Assuming that a patently obvious risk of harm to the victim will suffice, such cannot be established on this record for largely the same reasons that we discussed above in concluding that the record does not support a showing of foreseeable harm. The key facts relied on by the Plaintiffs— i.e., Gallagher's failure to explore Iarussi's unspecified personal "issues" and the nature of Iarussi's disability, her additional failure to investigate Iarussi's mental health history or Burroughs' claim that Iarussi had a violent temper, her refusal to request that Iarussi undergo a psychological evaluation, and the alleged failure to obtain an updated home study in 2001— collectively demonstrate, at most, simple negligence on the part of Gallagher, Vallone and/or Hughes based on their failure to have conducted a more thorough investigation into Iarussi's suitability as a placement resource. These failures, however, do not establish a reasonable inference that Gallagher, Vallone or Hughes were deliberately indifferent to a known or patently obvious risk of harm to Brittany by virtue of recommending Brittany's continued placement with Iarussi.
This is particularly true in light of several facts which stand unrebutted on this record. The first is the fact that it was Brittany's own mother who had identified Iarussi as a placement option based on Iarussi's apparently uneventful history of having cared for Brittany since her infancy.
The second is the collective body of evidence (Rosemary Burroughs' claims notwithstanding) which suggests that, as of August 2001, Iarussi was generally viewed as a suitable care-giver for Brittany. As we have discussed, this evidence came from a variety of social services and court-appointed professionals who had the benefit of regular contact with Brittany and/or Iarussi between 1999 and 2001 and who were all presumed to be acting with Brittany's best interests in mind.
Fourth is the unfortunate fact that Brittany had few desirable placement options available to her during this time frame. For obvious reasons, it was the goal of the juvenile court system to move Brittany toward an appropriate permanent placement. However, Brittany's foster mother was apparently unable to offer Brittany a permanent home. Although Brittany's biological
Fifth is Szklenski's representation that, during the time period when Iarussi exhibited agitation and instability, Gallagher pointedly asked her whether she believed Brittany was in any danger and Szklenski replied that she did not think so. According to Szklenski, Gallagher specifically advised her that, if any members of the Wraparound Team had concerns for Brittany's safety, those concerns should expressed and OCY would act upon them.
In context of this unrebutted evidence, it cannot reasonably be said that Gallagher, Vallone, or Hughes displayed deliberate indifference to a patently obvious risk of harm to Brittany's safety and welfare by advocating her continued placement with Iarussi and/or by failing to investigate Iarussi's qualifications more thoroughly. For this reason as well, Plaintiffs' substantive due process claim fails.
Defendants Valimont and Joseph were the two OCY agents primarily involved in handling the reports of suspected abuse which arose following Brittany's adoption. To the extent that Plaintiffs are also attempting to base their state-created danger claim on this aspect of OCY's involvement, the claim cannot survive summary judgment.
Plaintiffs theorize in their brief that Valimont and Joseph "took the course of least resistence" in investigating the post-adoption reports of suspected abuse so as not to disturb Brittany's placement with Iarussi. (Pls.' Mem. In Opp. to Mot. for Summ. Judg. [117] at pp. 22-23.) In particular, Plaintiffs criticize these Defendants for
It is questionable whether the foregoing misconduct, which sounds more in negligence, could establish "deliberate indifference," as is required for purposes of Plaintiffs' state-created danger claim, given Valimont's substantial, documented activity relative to the post-adoption referrals she handled. See, e.g., J.H. v. City of Philadelphia, Civil Action No. 06-2220, 2008 WL 3983269 at *9 (E.D.Pa. Aug. 19, 2008) (recognizing that, to be held liable under the state-created danger theory, an official's actions must be the result of more than mere negligence; rather, the state actor "must make deliberate, callous decisions which evince a willingness to ignore a known, foreseeable danger") (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 910-11 (3d Cir.1997)).
Even if the conduct of Valimont and Joseph could be fairly described as exhibiting deliberate indifference, however, this would not salvage Plaintiffs' state-created danger claim because their alleged misconduct fails to establish an affirmative act on their part which rendered Brittany more vulnerable to danger than if they had not acted at all. Ye v. United States, 484 F.3d 634, 639 (3d Cir.2007); Bright, supra, 443 F.3d at 281-82. Plaintiffs have alleged only that Valimont and Joseph were deliberately indifferent to Brittany by virtue of their inaction—i.e., their failure to protect Brittany from harm perpetrated by Iarussi, which is precisely the kind of claim precluded under DeShaney. See Bright, 443 F.3d at 282 (court noting that it has "never found a state-created danger claim to be meritorious without an allegation and subsequent showing that state authority was affirmatively exercised") (citations omitted).
In Bennett v. City of Philadelphia, 499 F.3d 281 (3d Cir.2007), the Third Circuit Court of Appeals recently reiterated this principle in a case not factually dissimilar to this one. Bennett involved a claim brought under § 1983 against the City of Philadelphia, its human services agency and several individual agents by the surviving siblings of a child who had been beaten and killed after her mother entrusted all of the children to an unfit and abusive care-giver. A parallel suit was brought by the deceased child's estate. The decedent's siblings asserted a state-created danger claim on the theory that, by closing its dependency case file on the children, the agency had rendered the children more vulnerable to harm by their mother and her acquaintances because it had allegedly cut the children off from a private source of aid. Finding no factual support for this theory, the court of appeals affirmed summary judgment for the defendants.
Upon reviewing the elements of a state-created danger claim, the Bennett court noted that it had consistently adhered to the pronouncements in DeShaney by requiring plaintiffs to allege affirmative acts on the part of state officials that constitute a "but for cause" of the risks they faced; mere "failures to act," the court noted, cannot form the basis of a valid § 1983 claim. 499 F.3d at 287-88 (discussing
Like the defendants in Bennett, Valimont and Joseph are not alleged to have done anything that made Brittany more vulnerable to Iarussi's abuse than if they had not acted at all. Stated differently, their actions (or, more accurately, their inactions) were not the "but for" cause of Brittany's endangerment. Accordingly, under the teachings of DeShaney, Bright, and Bennett, Valimont and Joseph were under no constitutional duty to protect Brittany from harm, whatever their responsibilities under state law may have been.
We reach this conclusion in full recognition of the fact that other agents of OCY were involved in advocating Brittany's placement with Iarussi. Two considerations compel it.
For one, substantive due process principles do not allow us to impute the constitutional duty to rescue, which may arise from one state agent's culpable, affirmative conduct, to another state agent who has not acted in any affirmative way to create the danger at hand. As to this point, we are persuaded by the Tenth Circuit's decision in Currier v. Doran, 242 F.3d 905 (10th Cir.2001). In that case, the court considered a § 1983 claim brought against various social workers who had allegedly been responsible for removing two young children from their mother's custody and facilitating placement with the father. After the father killed the male child, the social workers were sued under a state-created danger theory. In relevant part, the Currier court dismissed the claims against one particular social worker, Regina Sentell, whose only involvement concerned the investigation of abuse allegations which had arisen after the father had been awarded physical and legal custody of the children. The plaintiffs in Currier did not contend that Sentell was personally involved in creating the danger to the children; instead, they claimed only that Sentell "was constitutionally required to rescue the children because she was aware that her fellow co-workers had created the danger." 242 F.3d at 920-21. The Currier court rejected this theory and held that Sentell had no constitutional duty to rescue. Quoting Sutton v. Utah State School for Deaf and Blind, 173 F.3d 1226, 1237 (10th Cir.1999), the court observed that "state officials may be liable for injuries caused by a private actor where those officials created the danger that led to the harm." 242 F.3d at 921 (emphasis in the original). Thus, under the principle espoused in Currier, which we find to be correct, only officials who created the danger in question can acquire a constitutional
Of course, this Court has already determined that Gallagher, Vallone, and Hughes are not culpable under state-created danger principles as a matter of law. This brings us to our second point, which is that liability under a state-created danger theory cannot be premised upon non-culpable affirmative conduct that is later followed by allegedly conscience-shocking inaction. In this regard we are instructed by the Third Circuit's ruling in Walter v. Pike County, Pa., 544 F.3d 182, 196 (3d Cir. 2008). In that case, the court of appeals considered the viability of a state-created danger claim brought by the estate of an individual who had been killed by man accused of sexually molesting the decedent's daughters. Before his death, the decedent, Michael Walter, had been allowed, with the permission of a local police chief and the district attorney's office, to participate in the 2001 arrest of one Joe Stacy with the plan that Walter would extract a confession from Stacy about Stacy's alleged sexual assault of Walters' daughters. Stacy did make certain inculpatory statements to Walter and was arrested. The following year, as Stacy's criminal trial date drew near and Walter was set to testify against him, Stacy, who was out on bail, began to engage in increasingly menacing behavior toward the police chief, a fact which was not disclosed to Walter. Prior to the trial date, Stacy wound up shooting and killing Walter. Walter's estate subsequently sued the police chief as well as the district attorney and an assistant district attorney alleging, among other things, that the defendants had violated Walter's substantive due process rights by (1) involving him in Stacy's arrest and confession and (2) failing to warn Walter in 2002 when Stacy began stalking the police chief.
In reviewing the lower court's partial grant of summary judgment, the Court of Appeals concluded that the record could not support a finding that defendants had acted with deliberate indifference toward Walter's safety in planning and effecting Stacy's 2001 arrest and confession. 544 F.3d at 192, 193. In addition, the court ruled that the defendants could not be liable for their alleged inactions in later failing to have Stacy rearrested, failing to seek revocation of his bail, or failing to warn Walter of Stacy's menacing behavior or arrange protection for him because this conduct did not constitute affirmative action on the part of the state. Id. at 194. The court acknowledged that the latter events "did not occur in a vacuum," and that "the threat posed by Stacy in 2002 was likely due in part to the circumstances of his arrest in 2001," id. at 195, but it concluded that there could be no state-created danger liability because of the fact that the defendants' actions in 2001 were not conscience-shocking. Assuming, as the district court had found, that (i) the defendants had affirmatively used their authority in 2001 by allowing Walter to become involved in eliciting a confession from Stacy, and (ii) the defendants were deliberately indifferent in 2002 when they failed to warn the Walter family of Stacy's menacing behavior, the court of appeals concluded that this would not establish liability under a state-created danger theory. As the court explained,
544 F.3d at 196 (emphasis in the original). See also Bright, 443 F.3d at 284 (rejecting argument whereby plaintiff "[sought] to bring the law enforcement delay within the scope of the state-created danger doctrine by pointing to an affirmative action of the state which preceded it").
Such is the situation here as it pertains to the allegedly conscience-shocking post-adoption behavior of Valimont and Joseph. Even if we were to assume that Plaintiffs could establish deliberate indifference on the part of Valimont and Joseph with respect to their failure to more aggressively investigate the post-adoption referrals of abuse, this would be insufficient to establish a viable due process claim because there does not exist on this record any culpable, affirmative state action that created Brittany's danger. We have previously determined that the record in this case will not support a finding of deliberate indifference to a foreseeable risk of harm on the part of Gallagher, Vallone or Hughes. Like the plaintiffs in Walter, then, Plaintiffs in this case have established, at most, that OCY acted non-culpably in 2000-2001 to facilitate Brittany's placement with Iarussi and then, years later, engaged in allegedly conscience-shocking behavior through inaction. For these reasons as well, Plaintiffs' substantive due process claim, as set forth in Count I of the Complaint, cannot survive summary judgment.
We next consider Count II of the complaint, which asserts a § 1983 claim against Defendants OCY, Liebel, Adams, Leasure, and the "other individual Defendant supervisors" (presumably Vallone and Joseph) premised on their alleged failure to properly train and supervise the other individual Defendants in their handling of Brittany's case. "In order to establish supervisory liability, [a plaintiff] must show that [the defendant] `participated in violating [her] rights, or that he directed others to violate them, or that he, as the person in charge . . ., had knowledge of and acquiesced in his subordinates' violations.'" Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir.2010) (quoting Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
Insofar as Plaintiffs' claims relate to Defendants Liebel, Adams, and Leasure, no evidence has been offered to establish their personal involvement in the handling of Brittany's case at any time prior to her death. Moreover, Plaintiffs have failed to establish, as a predicate to supervisory liability, that Brittany's constitutional rights were violated. Accordingly, summary judgment is warranted in favor of these Defendants.
Insofar as Plaintiffs' claims under Count II relate to Defendants Vallone or Joseph, the record does support their knowledge and personal involvement in the handling of Brittany's case. Once again, however, for the reasons previously discussed, we have found that the conduct of these Defendants does not support liability under a state-created danger theory. Accordingly, summary judgment is warranted for these Defendants as well.
Count V of the Complaint asserts a § 1983 claim against OCY and Defendant Liebel based on a theory of municipal liability. "When a suit against a municipality is based on § 1983, the municipality can only be liable when the alleged constitutional transgression implements or executes a policy, regulation or decision officially adopted by the governing body or informally adopted by custom." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.1996) (citing Monell v. Dept. of Social
To withstand summary judgment, plaintiffs must demonstrate not only the existence of a policy or custom, but also its connection to the alleged constitutional injury. A government's policy is established when a "`decision maker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). "A course of conduct is considered to be a `custom' when, though not authorized by law, `such practices of state officials [are] so permanent and well settled' as to virtually constitute law." Id. (quoting Monell, 436 U.S. at 690, 98 S.Ct. 2018). See also Iverson v. City of Philadelphia, 213 Fed. Appx. 115, 118-19 (3d Cir.2007).
Because we have determined that the record here does not support the existence of a Fourteenth Amendment violation under Plaintiffs' state-created danger theory, there can be no basis upon which to find liability on the part of OCY or its Director, Liebel. See Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir.2003) (holding that where no constitutional violation was found to exist, there could be no finding of municipal liability against the city, and recognizing that "[t]his conclusion follows naturally from the principle that municipal liability will only lie where municipal action actually caused an injury") (quoting City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) for the proposition that a City "may be held liable if its policy actually causes injury"). Moreover, Plaintiffs have failed to establish on this record that any agency policy or custom was the moving force behind Brittany's harm. Consequently, summary judgment will be entered in favor of the Defendants as to Count V.
Plaintiffs' sole remaining state law cause of action at this point is their claim in Count VI for relief and damages under the Pennsylvania Survival Act. Defendants move for summary judgment as to this count on the ground that the Pennsylvania Wrongful Death and Survival Act, 42 Pa. C.S.A. §§ 8301 and 8302 were enacted to allow the survival of viable causes of action for bodily injury to a deceased, beyond the life of the victim, but did not create any new theory of liability. Thus, Defendants argue, the Plaintiffs here must state all the elements of a valid tort theory in order to maintain a claim under those statutes.
Defendants correctly point out that this Court previously dismissed Plaintiffs' substantive state law claims for gross negligence and negligence per se on the basis that Defendants were immune from these claims under Pennsylvania's Political Subdivisions Tort Claims Act ("PSTCA"), 42 Pa.C.S.A. §§ 8541-8542. See Hayes v. Erie County Office of Children and Youth, 497 F.Supp.2d 684, 704-08 (W.D.Pa.2007). Thus, it would seem that there is no remaining tort theory in this case that is legally viable.
Plaintiffs' only response to this argument is that the Defendants' request for summary judgment should be denied because their motion claimed only that Plaintiffs had failed to state a claim under the survival statute, whereas their brief argues
It is clear from the foregoing that Plaintiffs have not meaningfully joined issue on the merits of Defendants' request for summary judgment as it relates to Count VI. Plaintiffs' argument in opposition to summary judgment on this particular claim is unpersuasive and, therefore, the requested relief will be granted.
The suffering which Brittany Legler was forced to endure in her short and tragic life is difficult to fathom. Repeatedly, and through no fault of her own, Brittany was failed by the most important adult figures in her life, a trend which culminated in the incomprehensible and pointless cruelty inflicted by her adoptive mother. From a human perspective, this case is heartrending and will not soon be forgotten.
From a legal perspective, however, it is critical to acknowledge that the harm which befell Brittany, and for which the Plaintiffs now seek to recover, was inflicted by a private individual. When a plaintiff seeks to hold government actors responsible for the alleged violation of federal constitutional rights arising out of harm caused by private individuals, the law imposes a very stringent standard, permitting liability only under limited circumstances which cannot reasonably be found to exist on this record. Were it otherwise—were municipalities, states, and public bodies to be held constitutionally liable for every instance in which they failed to protect citizens from harm inflicted by non-governmental parties, the liability, as our circuit court of appeals has observed, "would be unlimited." Bennett, supra, 499 F.3d at 289. This stringent legal standard means that, in many instances, individuals who are harmed by private violence will find no redress under federal constitutional tort principles. But, as, the Third Circuit Court of Appeals has cautioned:
499 F.3d at 289-90.
For the reasons set forth at length herein, the Defendants' motion for summary judgment will be granted. An appropriate order follows.
AND NOW, to wit, this 29th day of March, 2011, for the reasons set forth in the accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that the Defendants' motion for summary judgment [71] be, and hereby is, GRANTED. JUDGMENT is hereby entered in favor of the Defendants and against the Plaintiffs, Charles and Victoria Hayes.
We find such a theory untenable as a matter of law, given the record before us. First, there does not appear to be a genuine dispute as to this issue: while Badach testified that her report was submitted to the juvenile court, Gallagher's testimony was that she was unsure whether it had been sent, as she could not find a cover letter in OCY's file to that effect. Because we do not have the benefit of the state court record, this issue cannot be definitively resolved. However, we may take judicial notice of the fact that, as a matter of Pennsylvania statutory law, homestudy and "preplacement reports" are a mandated component of adoption proceedings. See generally 23 Pa.C.S.A. § 2530 (discussing the requirement that a home study be completed prior to placement of a child in the home of a prospective adoptive parent, but allowing interim placement under certain conditions). As a general matter, they are required to be submitted as a part of the prospective parent's report of intention to adopt where the adoption involves a non-relative. See 23 Pa.C.S.A. § 2531(a) and (b)(7); id. at § 2701(2). Thus, we can accept Plaintiff's theory only if we are willing to indulge the assumption that the juvenile and/or orphans' court acted in derogation of Pennsylvania law.
Even if it can reasonably be inferred, however, that the courts of Erie County acted without the benefit of Badach's report, it is speculative to assume that those courts would have ruled differently with respect to Brittany's placement if only they had reviewed the contents of that report. We are unwilling to engage in such speculation.
Finally, insofar as this issue bears on the Defendants' alleged deliberate indifference, we note there is no evidence to support the idea that Gallagher or anyone else at OCY deliberately withheld Badach's report from the court or other interested parties. On the contrary, Gallagher disclosed the existence of the study being performed by Badach in her June 9, 2000 report to the juvenile court, and both Brittany's GAL and CASA were copied on this report, along with the attorney representing Brittany's mother. Accordingly, if it can be assumed that the juvenile and orphans' courts were without the benefit of Badach's report, this fact does not undermine our conclusion that the record fails to support a finding of deliberate indifference on the part of Gallagher, Vallone, and Hughes.
