Croft v. Westmoreland Cty , 103 F.3d 1123 ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
1-6-1997
Croft v. Westmoreland Cty
Precedential or Non-Precedential:
Docket 95-3528
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Recommended Citation
"Croft v. Westmoreland Cty" (1997). 1997 Decisions. Paper 4.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/4
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THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 95-3528
__________
HENRY L. CROFT, JR.; CAROL CROFT, INDIVIDUALLY
AND AS PARENTS AND NATURAL GUARDIANS OF CHYNNA CROFT,
A MINOR,
Appellants
v.
WESTMORELAND COUNTY CHILDREN AND YOUTH SERVICES;
WESTMORELAND COUNTY; CARLA DANOVSKY,
Appellees
__________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 93-00995)
__________
Argued June 28, 1996
___________
Before: BECKER, NYGAARD AND LEWIS, Circuit Judges
__________
(Opinion Filed: January 6, 1997)
__________
Alexander H. Lindsay, Jr.
Lindsay, Lutz, Jackson,
Pawk & McKay
408 North Main Street
Butler, Pa. 16001
Susan S. Jackson (Argued)
Lindsay, Lutz, Jackson,
Pawk & McKay
408 North Main Street
Butler, Pa. 16001
Counsel for Appellants
Sherry L. Halfhill (Argued)
Burns, White & Hickton
120 Fifth Avenue
Suite 2400
1
Pittsburgh, Pa. 15222
Counsel for Appellee
Westmoreland County Children
and Youth Services and
Appellee Carla Danovsky
David J. Singley (Argued)
Israel, Wood & Puntil
310 Grant Street
Suite 501
Pittsburgh, Pa. 15219
Counsel for Appellee
County of Westmoreland
__________
OPINION OF THE COURT
__________
NYGAARD, Circuit Judge.
Plaintiffs-Appellants, Dr. Henry L. Croft, Jr., and
Carol Croft, individually and as parents and natural guardians of
Chynna Croft, appeal an order of the district court granting
summary judgment for defendants-appellees, Carla Danovsky,
Westmoreland County Children and Youth Services, and Westmoreland
County. We will reverse and remand.
I.
On February 1, 1993, Gerald Sopko, Assistant Director
of the Westmoreland County Children's Bureau received a call from
Childline, informing him that Dr. Croft was sexually abusing his
daughter, Chynna. Sopko was further told that the child slept
with her parents and that she had recently been out of the house
naked, walked to a neighbor's house, knocked on the door, and
told the neighbors that she was "sleeping with mommy and daddy."
2
Barbara Jollie, Program Director for the Assessment
Department of the Westmoreland County Children's Bureau, assigned
the matter to Carla Danovsky for investigation. Danovsky,
accompanied by State Police Trooper Griffin, went to the Croft
home that night. Danovsky told Dr. Croft she was investigating
him for possible sexual abuse of his daughter based on the
Childline report. Dr. Croft consented to be interviewed.
Dr. Croft explained that Chynna had indeed, in April of
1992, left her bed without waking her parents, gone downstairs
and outside, and locked herself out of the house. She then went
to the house of her babysitter/nanny, a short distance from the
Croft home, wearing her pajama top and holding her pajama bottoms
with a soiled diaper inside. He further provided Danovsky with
the telephone number of the nanny who could verify his version of
events.
Dr. Croft agreed that his daughter had seen him naked
and that, in fact, the family vacationed in the French West
Indies where nude beaches are routine. Dr. Croft stated that his
wife sunbathed nude around Chynna. He explained that Chynna
suffered from seizures and, although she regularly slept in her
parents' bed so they could be nearby if necessary, she slept
naked only rarely. Henry and Carol Croft slept clothed. Dr.
Croft told Danovsky that he had applied medicinal creams to her
vaginal area when she had a rash. He denied sexually abusing
Chynna.
Danovsky gave Dr. Croft an ultimatum: unless he left
3
his home and separated himself from his daughter until the
investigation was complete, she would take Chynna physically from
the home that night and place her in foster care. Dr. Croft then
left the room and Danovsky interviewed Carol Croft while Chynna
sat in her lap. Carol Croft confirmed Dr. Croft's version of the
April 1992 incident when Chynna locked herself out of the house.
Finally, Danovsky questioned Chynna, who also confirmed Dr.
Croft's version of the lock-out incident. Chynna provided no
indication that she had ever been sexually abused. Danovsky then
reiterated her ultimatum, that unless Dr. Croft immediately left
his home and had no contact with his daughter, Danovsky would
remove Chynna from the home that very night and place her in
foster care. Faced with this dilemma, Dr. Croft complied with
her ultimatum, and left his home, wife and daughter.1
Danovsky testified to some inconsistencies between the
statements of the Croft parents. She testified that Carol Croft
said that Chynna never saw Henry Croft swimming naked, and that
she sunbathed topless but not totally nude. One of the parents
informed Danovsky that Chynna never slept naked in their bed,
while the other said she was not clothed all the time. In sum,
however, the differences were insignificant and reasonable under
the circumstances. Danovsky also testified that, pursuant to
1
Defendants repeatedly have characterized Dr. Croft's
decision to leave as "voluntary." This notion we explicitly
reject. The threat that unless Dr. Croft left his home, the
state would take his four-year-old daughter and place her in
foster care was blatantly coercive. The attempt to color his
decision in this light is not well taken.
4
County policy, a parent accused of sexual abuse must prove beyond
any certainty that there was no sexual abuse before she would be
permitted to leave a child with his or her parents. She further
testified that if a County caseworker does not know whether or
not the allegation is true, the child will be separated from the
alleged perpetrator. Danovsky also testified that at the
conclusion of her interview with the Crofts, she was uncertain
whether any sexual abuse had occurred.
The Crofts filed a complaint in the federal district
court against Westmoreland County Children and Youth Services
(WCCYS), Carla Danovsky and Westmoreland County. They alleged
that the defendants had impermissibly interfered with their
Fourteenth Amendment liberty interest in the companionship of
their daughter.
Defendants filed motions to dismiss the complaint,
which, since discovery had been completed, were considered as
motions for summary judgment. They argued that defendant
Danovsky was entitled to qualified immunity for her actions and
that the county and WCCYS enjoyed municipal immunity from the
charges. The court entered summary judgment against the Crofts
on all three counts, asserting that the Crofts would
impermissibly have the court elevate their right to freedom of
intimate association above Defendants' obligation to protect
children. The Crofts timely appealed.2
2
We note that the Crofts are appealing the district
court’s order with respect only to the County and the WCCYS, not
as to Carla Danovsky. Furthermore, the Crofts are only appealing
the district court’s determination of their substantive due
5
II.
We recognize the constitutionally protected liberty
interests that parents have in the custody, care and management
of their children. See Lehr v. Robertson, 463 U.S. 248, 258, 103
S. Ct. 2985, 2991-92 (1983); Myers v. Morris, 810 F.2d 1437, 1462
(8th Cir. 1987). We also recognize that this interest is not
absolute. Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir.
1994); Myers, 810 F.2d at 1462. Indeed, this liberty interest in
familial integrity is limited by the compelling governmental
interest in the protection of children --- particularly where the
children need to be protected from their own parents. See Myers,
810 F.2d at 1462. The right to familial integrity, in other
words, does not include a right to remain free from child abuse
investigations. Watterson v. Page, 987 F.2d 1, 8 (1st Cir.
1993).
The Due Process Clause of the Fourteenth Amendment
prohibits the government from interfering in familial
relationships unless the government adheres to the requirements
of procedural and substantive due process.3 In determining
whether the Crofts’ constitutionally protected interests were
violated, we must balance the fundamental liberty interests of
the family unit with the compelling interests of the state in
process issues.
3
We note here only that the policy of removing the
suspected parent from the family home during the pendency of
child abuse investigations absent any procedural safeguards
raises a procedural due process issue.
6
protecting children from abuse. Whatever disruption or
disintegration of family life the Croft’s may have suffered as a
result of the county’s child abuse investigation does not, in and
of itself, constitute a constitutional deprivation. Watterson,
987 F.2d at 8; see also Frazier v. Bailey, 957 F.2d 920, 931 (1st
Cir. 1992).
We realize there may be cases in which a child services
bureau may be justified in removing either a child or parent from
the home, even where later investigation proves no abuse
occurred. However, a state has no interest in protecting
children from their parents unless it has some reasonable and
articulable evidence giving rise to a reasonable suspicion that a
child has been abused or is in imminent danger of abuse. See
Lehr, 103 S. Ct. at 2990 (declaring liberty interests in
preserving the family unit "are sufficiently vital to merit
constitutional protection in appropriate cases") (emphasis
added); accord Myers, 810 F.2d at 1462-63 (noting parental
liberty interest in maintaining integrity of family unit is not a
clearly established right where there is a "reasonable suspicion"
abuse may have occurred).
Our focus here is whether the information available to
the defendants at the time would have created an objectively
reasonable suspicion of abuse justifying the degree of
interference with the Crofts’ rights as Chynna’s parents.4
4
This proposition is most often raised against
government action that threatens to remove a child from his or
her home. Nonetheless, we can discern no rational distinction
which would entitle governments to order parents from their homes
7
Absent such reasonable grounds, governmental intrusions of this
type are arbitrary abuses of power. See Gottlieb v. County of
Orange, 84 F.3d 511, 517 (2d Cir. 1996) (finding no due process
violation for removing child where child welfare workers possess
objectively reasonable basis for believing parental custody
represents a threat to child's health or safety); Thomason v.
SCAN Volunteer Services, Inc., 85 F.3d 1365, 1371 (8th Cir. 1996)
(holding child care worker entitled to qualified immunity in §
1983 action where he or she removes child on reasonable suspicion
of child abuse); cf. 42 Pa. Cons. Stat. § 6324 and 23 Pa. Cons.
Stat. § 6315 (providing for removing child from home only where
there are reasonable grounds to believe the child suffers from
injury, or is in imminent danger of injury from her
surroundings); Myers, 810 F.2d at 1462-63 (noting parental
liberty interest in maintaining integrity of family unit is not a
clearly established right where there is a "reasonable suspicion"
that abuse may have occurred).
Before the interviews, Danovsky possessed a six-fold
hearsay report by an anonymous informant stating that the mother
had told a friend that Dr. Croft had abused Chynna and that
Chynna had recently been put out of the house naked, walked
several miles, was found by a neighbor, and said she was sleeping
with her parents.5
and arbitrarily separate parents from their children; or to
deprive children of their liberty interests in continued
companionship with their parents.
5
The anonymous tip reported that "[T]he mother told a
friend. . ." of sexual abuse. Subsequently, the information went
8
Dr. Croft confirmed that an incident bearing only the
barest resemblance to the anonymous tip had happened. Far from
corroborating the anonymous tip, the Crofts' statements raised
serious questions about the veracity of the informant. An
anonymous tip may justify investigation but will not provide
reasonable grounds for removal of a family member absent
independent, articulable criteria of reliability; and certainly
not when all evidence is to the contrary. Cf. Alabama v. White,
496 U.S. 325, 328, 110 S. Ct. 2412, 2415 (1990) (anonymous tip,
absent sufficient indicia of reliability, will not support
reasonable suspicion necessary to justify stop-and-frisk); United
States v. Roberson, 90 F.3d 75, 78 (3d Cir. 1996) (anonymous tip
that only contains information readily observable at the time the
tip is made does not supply reasonable suspicion to stop).
Danovsky was entitled to view the statements of an
alleged perpetrator skeptically. She was not, however, entitled
to rely on the unknown credibility of an anonymous informant
unless she could corroborate the information through other
sources which would have reduced the chance that the informant
was recklessly relating incorrect information or had purposely
distorted information. See Illinois v. Gates, 462 U.S. 213, 103
S. Ct. 2317, 2331 (1983) (anonymous tip, without other indicia of
from the informant, to Childline, to Gerald Sopko, to Barbara
Jollie, to Danovsky. We recognize that child abuse will often be
reported anonymously. We additionally realize that such hearsay
may often be the only available evidence to alert the child abuse
investigators. Anonymous informants, such as those who report
suspected abuse on the Childline, are undoubtedly important in
policing “invisible crimes” like child sexual abuse.
9
reliability, does not establish probable cause for search
warrant).
Danovsky, in her deposition testimony, pointed to what
she called "red flags" -- statements given during the interviews
which raised questions in her mind about whether the tip was true
-- as further justification for forcing Henry Croft from his
home. The red flags cited by Defendants are incapable of
providing the necessary reasonable grounds. For example, at one
point during the interview, Dr. Croft told Danovsky that he had
applied vaginal creams to Chynna when she had a rash, which
Danovsky interpreted to mean that he regularly gave his daughter
vaginal exams. Likewise, Danovsky's reliance on supposed
inconsistencies between the statements of Carol and Dr. Croft is
without foundation. None of the cited inconsistencies is
evidence of child sexual abuse, nor did any of the statements in
any way confirm the allegations of the anonymous tip. Even
considered together, minor inconsistencies which provide no
affirmative evidence of sexual abuse cannot alone establish the
objectively reasonable grounds necessary to remove a family
member from the family unit.
Most damaging to Defendants is Danovsky's deposition
testimony that, after the interviews, she had no opinion one way
or the other whether sexual abuse had occurred. Alternatively,
Danovsky testified that she did not have enough information to
make a determination and that further investigation was required.
Under either statement, Danovsky did not have reasonable
10
grounds, to any degree of certainty, that Chynna was sexually
abused or was in imminent danger of abuse. She possessed no
evidence of abuse beyond an anonymous tip. Danovsky had no
physical evidence of sexual abuse with which to base an opinion.
She was merely presented with an anonymous tip relating an
incident which was reasonably explained by the accused parents.
Record evidence establishes that Danovsky lacked any objective
evidence of sexual abuse, and, indeed, that she had no belief
that such abuse had occurred.
Considered in light of the circumstances surrounding
the ultimatum, Danovsky's conduct was an arbitrary abuse of
government power. Based on her lack of an opinion regarding
whether sexual abuse had occurred, we hold that she lacked
objectively reasonable grounds to believe the child had been
sexually abused or was in imminent danger of sexual abuse.
Combined with the total absence of objective evidence which would
support a belief that sexual abuse had occurred, we hold that
Danovsky's conduct will certainly not support the grant of
summary judgment in the Defendants’ favor. Because the Crofts
did not cross-file for summary judgment, we, sitting as a court
of review, must remand the cause to the district court for
further proceedings.6
6
While Judge Becker joins in the preceding portions of the
opinion, he is not prepared at this juncture to hold that
Danovsky’s conduct violated the Crofts’ constitutional rights, or
that, on remand, the Crofts are entitled to an automatic summary
judgment on their claims, as the majority opinion seems to
suggest.
11
III.
We will reverse the district court's entry of summary
judgment.7
Costs will be taxed against the Appellee.
7
The Crofts have also raised questions of fact, inter alia,
whether an unconstitutional custom or policy existed; whether
the relevant final policy makers for WCCYS and the County
consciously or deliberately enacted, or acquiesced in, the custom
or policy at issue; and, whether the custom or policy caused the
violation of the Crofts’ constitutional rights.
12