PENNSYLVANIA RECORD

A Berks County couple suing the Office of Children and Youth Services over allegations

that the agency improperly removed their children from their care has survived a motion to dismiss the litigation.

U.S. District Judge Michael Baylson, sitting in the Eastern District of Pennsylvania, granted a defense motion to dismiss a claim of illegal entry against three of the named defendants, all county employees, but denied the defendants’ dismissal motion with regard to all other claims.

Attorneys with the Radnor law firm McCausland Keen & Buckman filed suit earlier this year against Berks County, the county’s Office of Children and Youth Services and various county workers and officials over claims that two children, a 2-year-old and a 13-year-old with special needs, were taken from their Cumru Township home without cause this past July.

The complaint alleges that CYS caseworker Brandon Clinton showed up at the plaintiffs’ house on July 23, 2012 after his office received an anonymous report involving child abuse that had supposedly taken place decades before.

The mother and father, who are both identified in the complaint by the initials “D.M.,” claim that their two adoptive children were then removed from their residence without a court order.

The youngsters allegedly weren’t allowed back into the home until two months later, and only after the father agreed to take a sexual offender evaluation test, despite the fact that the man adamantly stresses that he never abused his children.

The plaintiffs’ lawyers contend that the “anonymous” call that started the whole ordeal was made by the couple’s adult daughter who is embroiled in a separate defamation suit against the plaintiffs concerning the living situation of the adult daughter’s own daughter.

The attorneys representing the couple maintain that the two children who were taken from the home and placed in separate homes for two months were never in any danger, and that the county violated protocol, and the law, when it took the children without either a court order or proof that the kids were in imminent danger.

They claim the defendants’ actions violated the plaintiffs’ procedural and substantive due process rights under the Fourteenth Amendment, their rights to association under the First Amendment, and their rights to be free from unreasonable seizure and entry into the home under the Fourth Amendment.

In his March 14 memorandum and order, Baylson wrote that the plaintiffs have plausibly alleged that the defendants lacked reasonable suspicion that either “J.M.” or “D.P.,” the children in the case, had been abused or were in imminent danger of abuse.

In making that ruling, Baylson decided that the plaintiffs’ substantive due process claim could move forward, despite the defense argument that the claim should be dismissed because the defendants were mandated by state law to investigate the allegation by the adult daughter, Danielle, that her father had sexually abused her when she was a child.

It was that allegation that led to the county’s removal of the two younger children from the home.

In explaining his decision to allow the substantive due process claim to move forward, the judge wrote that the defendants knew Danielle was in a fierce custody battle with the plaintiffs that gave her a motive to lie, that the defendants were aware that their adult daughter had made similar allegations in the past that were subsequently deemed unfounded, and that the defendants never found any signs of abuse or neglect among the younger children.

Baylson also allowed the plaintiffs’ procedural due process claim to move forward, writing that the couple has thus far plausibly pled such a claim.

In this part of the lawsuit, the couple claims that the defendants failed to provide them with a post-deprivation hearing for more than 40 days after the removal of the children.

The judge disagreed with the defense contention that the couple had actually “volunteered” to remove the kids from the home.

The judge also allowed the plaintiffs’ Monell liability claim, First Amendment Right to Association claim, and Fourth Amendment Unlawful Intrusion and Seizure claims to move forward.

The only claim struck down by the court was the illegal entry component of the plaintiffs’ Fourth Amendment claim against Assistant County Solicitors Jennifer L. Grimes and Jennifer L. McCollum, and CYS caseworker Kathleen A. High.

The three are being sued under a supervisor liability theory.

The plaintiffs had alleged that Clinton, the CYS caseworker who entered the residence without a warrant, did so at the direction of his supervisors.

By the amended complaint’s “own definition,” however, this allegation would not encompass Grimes, McCollum and High, the judge wrote, explaining his justification for granting this portion of the defendants’ motion to dismiss.

Lastly, Baylson determined that despite a defense contention that Grimes, McCollum and Clinton are entitled to absolute immunity on the plaintiffs’ First and Fourteenth Amendment claims, the Third Circuit Court of Appeals has held that absolute immunity for child welfare employees is not available for “investigative or administrative actions taken … outside the context of a judicial proceeding.”

“Here, the actions by Grimes, McCollum, and Clinton that form the basis of Plaintiffs’ claims were clearly investigative in nature, and occurred in a context that allowed for non-hurried judgments,” Baylson wrote. “Accordingly, the ‘strong medicine’ of absolute immunity is not warranted under the circumstances of this case."