PENNSYLVANIA RECORD

There is a legal showdown playing out at the federal court in Philadelphia between the

adoptive parents of two children, one of whom has special needs, and Berks County over claims that the county’s Office of Children and Youth Services improperly removed the youngsters from their parents’ care after receiving complaints of abuse, allegations that were apparently later deemed to be unfounded.

In early January, attorneys Benjamin R. Picker and Glenn S. Gitomer, of the Radnor law firm McCausland Keen & Buckman, filed a civil rights complaint at the U.S. District Court for the Eastern District of Pennsylvania against Berks County and various county employees over claims that CYS “illegally and coercively” removed the two children from their Cumru Township home this past summer after agency employees received an anonymous report of possible child abuse.

The complaint alleges that CYS caseworker Brandon Clinton visited the plaintiffs’ house on July 23 after the agency received the anonymous report, a call the plaintiffs believe was made by their adult daughter, Danielle, three days earlier.

The plaintiffs, identified in the suit only by their initials, “D.M.,” the mother, and “D.M.,” the father, claim that their two children, “J.M.” and “D.P.,” were soon removed from the home without a court order.

The lawyers maintain that Clinton and police Sgt. James Griffith entered the plaintiffs’ home without a warrant on July 23, at which point the caseworker advised the father, who was inside the house at the time, and the mother, who was in earshot on the telephone, that CYS had received a report of suspected child abuse that had allegedly occurred more than 20 years before.

Clinton then informed the husband that he was “not going to wait around all day and if the Children were not placed outside of the home during the course of an investigation … he would immediately take the Children into protective custody and have them placed in foster care,” the complaint states.

The lawsuit claims that J.M. in particular would be traumatized by removal, since he has autism and was “terrified of returning to foster care,” where he had been previously.

J.M. is a young teenager while J.D. is about 2-years-old, according to Picker, one of the plaintiffs’ attorneys.

In a phone interview with the Pennsylvania Record, Picker explained that the 13-year-old is an adopted child who had been in foster care before, and was “scared to death” to go back, while the toddler is a child over whom the wife has legal custodial rights.

The 2-year-old is not the natural child of the plaintiffs.

In their complaint, Picker and his co-counsel contend that the defendants’ actions violated the couple’s constitutional rights, including their procedural and due process rights.

The main allegation is that CYS removed the children from the home without a court order, or any type of evidence that the kids were in imminent danger, and also that CYS demanded that the father undergo a sexual offender evaluation in order to merely see his children while the youngsters were out of the house for two months.

During the separation period, one of the kids went to live with a relative while the other temporarily resided with a friend, according to Picker.

By phone, and in his complaint, Picker stated that it is believed the reason Danielle, the adult daughter, made the false complaint to CYS was because she is currently embroiled in her own custody battle with the plaintiffs over the living situation of her own daughter.

The complaint also states that prior to the removal of the children, Clinton, the caseworker, was aware that the plaintiffs had filed a separate defamation suit against Danielle in the Berks County Court of Common Pleas over the woman’s false allegations of abuse.

That action is currently pending, records show.

Picker said he believes the phone call to CYS about the plaintiffs’ two children was retaliation for the couple seeking custody of Danielle’s child.

Meanwhile, Picker said, the plaintiffs’ two children have since been returned to the home, although the parents now have to welcome CYS workers for unannounced site visitations.

“This is a case about innocent children who were illegally and coercively removed from their loving and devoted parents without due process by overzealous, inadequately trained, and inadequately supervised employees of an out-of-control county government agency, and the acts of those employees were directed, authorized and/or ratified by policymaking officials of that agency,” the complaint reads.

Picker said the defendants are attempting to argue that the removal of the children was voluntary on the plaintiffs’ part, but he disputes that assertion, saying that the defendants’ “own words and their own actions belay that.”

The complaint also alleges that under state law, as well as “clearly established principles of Federal constitutional law,” a hearing should have been held prior to the kids’ removal because there was no probable cause or reasonable suspicion to believe that the two children were being abused.

Picker said that the teen flatly stated he was not being abused.

The defendants have since filed their own lengthy motion to dismiss the complaint, with their lawyers writing that the plaintiffs have failed to state a claim upon which relief can be granted.

For one thing, the defendants argue that the plaintiffs’ procedural due process claim fails as a matter of law because the procedures available to the plaintiffs under state law, and the defendants’ conduct investigating the original child abuse report, constituted due process of law.

“Presently, Plaintiffs have not established facts that they suffered a Constitutional deprivation,” the motion to dismiss reads. “At best they assert that Clinton ‘coerced’ them into removing their child from the home during the investigation. This, in and of itself, is not sufficient to establish a Constitutional deprivation.”

The motion also argues that the plaintiffs’ substantive due process claim fails because there was “reasonable and articulable” evidence giving rise to a reasonable suspicion of abuse that prompted the investigation.

The complaint also alleges a 4^th Amendment violation that arose out of Clinton’s alleged illegal entry into the plaintiffs’ home, and due to the fact that the youngsters were removed from the home without probable cause.

The dismissal motion says that without more facts establishing how Clinton entered the residence – whether or not he was invited in – the complaint does not appear to state a plausible claim for a deprivation of the 4^th Amendment.

The defense attorneys further wrote that the court should not grant the plaintiffs’ request for anonymity, especially due to the fact that they have already been named in the defamation action against Danielle in county court.

In addition to the county, Clinton, and Griffith, the other defendants named in the lawsuit are George Kovarie, the executive director of CYS; Brandy M. Neider, the agency’s director of intake; Wendy Kim Seidel, CYS’s director of in-home services; Barbara A. Jakubek, the agency’s director of placement; and Timothy M. Siminski, Lisa Marie Eshbach and James J. Trupp, III, all CYS casework supervisors.

Additional defendants include CYS caseworker Kathleen A. High and assistant county solicitors Jennifer L. Grimes and Jennifer L. McCollum.

 

The federal case number is 5:12-cv-06762-MMB.