                                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                         No. 13-3182
                        _____________

REGINALD DENNIS; RENEE DENNIS, Individually and as the
Natural Parent and Next Friends of B.D. a Minor; B. D., a minor,
                                           Appellants

                               v.

  ALLAN R. DEJONG, M.D.; COUNTY OF DELAWARE;
  MARY GERMOND; META WERTZ; BETH PRODOEHL;
   PATRICIA MCGETTIGAN; GINA GIANCRISTIFORO;
                    DR. DOE
                 ______________

 APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA
               (D.C. Civil No. 5-10-cv-06789)
      District Judge: Honorable James Knoll Gardner
                      ____________

          Submitted Under Third Circuit LAR 34.1(a)
                      January 16, 2014
                       ____________

    Before: RENDELL, ROTH and BARRY, Circuit Judges

              (Opinion Filed: February 12, 2014)
                       ____________

                          OPINION
                        ____________
BARRY, Circuit Judge

       Appellants Reginald Dennis and Renee Dennis are the parents of Appellant B.D.,

a minor child who, following a 17-day hospitalization, was removed from their care for

approximately nine months during the pendency of a child abuse investigation. The

Dennises (or “the parents”) now appeal the District Court’s decision granting summary

judgment against them on their procedural and substantive due process claims, brought

pursuant to 42 U.S.C § 1983, against the County of Delaware (Pennsylvania), and

individual defendants Mary Germond, Meta Wertz, Patricia McGettigan, and Gina

Giancristiforo, each of whom was employed by Delaware County Children and Youth

Services (“CYS”) at the relevant times. We will affirm.

I.     Background

       On November 22, 2008, the Dennises took B.D., then two months old, to

Christiana Hospital, where doctors examined him and performed a computed tomography

(“CT”) scan. Thereafter, the hospital issued a Report of Suspected Child Abuse, referred

the matter to CYS, and transferred him to A.I. duPont Hospital for Children (“DuPont”).

At DuPont, doctors performed additional testing and identified B.D. as suffering from a

skull fracture, subdural hematoma, and rib fractures.

       The Dennises were interviewed by Ms. McGettigan and Ms. Giancristiforo of

CYS. They denied that any abuse had taken place, although Mrs. Dennis indicated that

she had seen bruising on B.D. in the past and had spoken to Mr. Dennis about how to

hold him appropriately. Mrs. Dennis also stated that on November 20, B.D. was acting

                                            2
fussy and Mr. Dennis had spent 10-15 minutes alone with him to change his diaper.

Later that night, she stated, they observed that B.D. was not moving his arm and that his

hands were shaking.

       At the request of CYS, a doctor who had examined B.D. (and had separately

interviewed Mrs. Dennis) provided a report stating that B.D. suffered from a skull

fracture and rib fractures and that he suspected physical child abuse. The doctor’s report

stated that he did not believe B.D. would be safe alone with either Mr. or Mrs. Dennis.

CYS indicated to the Dennises that it would seek an out-of-home placement for B.D.

upon his release from the hospital, and the Dennises requested that he be placed with

family friends, the Stevensons.

       On December 9, 2008, B.D.’s expected date of release from the hospital, Ms.

Giancristiforo drafted a memorandum for the court, outlining the CYS allegations of

abuse and requesting a protective custody order for B.D. The memorandum indicated

that “[t]here are no known family resources to care for the baby upon his discharge from

the hospital” and that “[c]ommunity caregivers have come forward,” but that “[i]t is the

agency’s belief that the caregivers must complete a full resource home study before the

agency would recommend that the baby be moved to their care.” (App. at 576.) The

memorandum was signed by Ms. Wertz and Ms. McGettigan and sent ex parte to Judge

Maureen Fitzpatrick of the Court of Common Pleas of Delaware County. The court

issued an order granting CYS protective custody of B.D. The order stated that

“reasonable efforts were made by the agency to prevent placement.” (App. at 578.) CYS

                                             3
placed B.D. in medical foster care, despite an indication from his doctor that he would

not require medical foster care.1 On February 23, 2009, CYS transferred him to foster

care in the Stevensons’ home.

       On December 11, 2008, an initial hearing was held in the Court of Common Pleas

before Master David McNulty. At the hearing, the Dennises were represented by counsel

and B.D.’s interests were represented by a Guardian Ad Litem, who objected to the return

of B.D. to his parents. The Master determined that Judge Fitzpatrick’s order would

remain in effect until the adjudicatory hearing, which was scheduled for less than a

month later. Although Pennsylvania law required CYS to file a dependency petition

within 48 hours of the initial hearing, see 23 PA. CONS. STAT. ANN. § 6315(d), CYS did

not file a petition until December 29, 2008. The petition was signed by Ms. Germond, an

administrator of CYS.

       The adjudicatory hearing, at which Judge Michael F.X. Coll of the Court of

Common Pleas presided, was originally scheduled to commence on January 13, 2009, but

began on April 22, 2009 and continued on June 2, July 8, and August 21, 2009.

Throughout this time, Mrs. Dennis2 was permitted to attend all of B.D.’s medical and

therapy appointments and have supervised weekly one-hour visits with him. At the

1
  A placement is designated as “medical foster care” when the child has significant
medical needs that will need specialized care. The foster parents are compensated
differently and may have specialized training.
2
  Mr. Dennis was criminally charged in connection with B.D.’s injuries and was not
permitted to visit with B.D. as a condition of his bail. The criminal charges were
ultimately resolved by Mr. Dennis’s participation in an Accelerated Rehabilitative
Disposition Program. As part of the program, Mr. Dennis was not required to plead
guilty to the charges and they were dismissed upon his completion of the program.
                                              4
hearing, counsel for Mrs. Dennis asked the judge to permit more visitation with B.D.

The judge stated that he would consider the request at the hearing’s conclusion. The

Dennises presented several medical experts at the hearing who offered alternate

explanations for B.D.’s injuries, including birth trauma and congenital rickets.

Ultimately, on August 21, 2009, the court determined that child abuse was not proven by

a preponderance of the evidence or by clear and convincing evidence. The court

dismissed the dependency petition, and B.D. was immediately returned to Mrs. Dennis.

       On November 19, 2010, the Dennises filed a lengthy civil complaint. The District

Court dismissed certain of the counts and defendants from the case, while others were

later dismissed on consent of the parties. Cross motions for summary judgment were

filed, and on June 14, 2013, in a 78-page opinion, the Court granted summary judgment

in favor of defendants on all remaining counts.

       On appeal, the Dennises contend that the District Court erred in granting summary

judgment to defendants on their procedural and substantive due process claims. They

argue that (1) CYS denied them a pre-deprivation hearing and purposefully delayed the

request for protective custody until the morning B.D. was released from the hospital;

(2) CYS obtained protective custody by making misrepresentations in the ex parte

memorandum submitted to Judge Fitzpatrick, in retaliation against Mrs. Dennis for her

belief in Mr. Dennis’s innocence; (3) CYS failed to file the dependency petition within

48 hours after the initial hearing, resulting in a violation of the Dennises’ rights; (4) the

Court erred in finding that actual damages are required to maintain a due process action;

                                               5
and (5) CYS failed to give Mrs. Dennis more visitation or place B.D. with her, in

retaliation for her support of Mr. Dennis.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the Court’s

decision to grant summary judgment, and view the facts in the light most favorable to the

parents. B.S. v. Somerset Cnty., 704 F.3d 250, 260 (3d Cir. 2013).

III.   Analysis

       To state a claim under 42 U.S.C. § 1983 for deprivation of procedural due process

rights, “a plaintiff must allege that (1) he was deprived of an individual interest that is

encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or

property,’ and (2) the procedures available to him did not provide ‘due process of law.’”

Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006). “The fundamental

requirement of due process is the opportunity to be heard at a meaningful time and in a

meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation

marks omitted). In Mathews, the Supreme Court held that in determining what process is

due in a given situation, we are to weigh:

       [F]irst, the private interest that will be affected by the official action;
       second, the risk of an erroneous deprivation of such interest through the
       procedures used, and the probable value, if any, of additional or substitute
       procedural safeguards; and finally, the Government’s interest, including the
       function involved and the fiscal and administrative burdens that the
       additional or substitute procedural requirement would entail.


                                               6
424 U.S. at 335. In assessing whether parents have received procedural due process

where a child has been removed from their care, we have recognized that the private

interest “springs from the parent-child relationship,” and that, as the Supreme Court has

held, there is a “fundamental liberty interest of natural parents in the care, custody, and

management of their child.” Miller v. City of Phila., 174 F.3d 368, 373 (3d Cir. 1999)

(quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). “This interest, however, must

be balanced against the state’s interest in protecting children suspected of being abused.”

Id. Moreover, because the interpretation and application of the Due Process Clause are

“intensely practical matters,” see Goss v. Lopez, 419 U.S. 565, 578 (1975), we “must

consider” the results that our ruling will have on other similar proceedings. Miller, 174

F.3d at 373.

       We have recognized that the interest of parents in the care, custody, and

management of their children is an interest that is also protected by the substantive due

process component of the Fourteenth Amendment. Id. at 374. A substantive due process

right, however, is “violated by executive action only when it can properly be

characterized as arbitrary, or conscience shocking, in a constitutional sense.” Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (internal quotation omitted). For liability

to attach in a situation where a social worker acts to separate parent and child, “the

standard of culpability for substantive due process purposes must exceed both negligence

and deliberate indifference, and reach a level of gross negligence or arbitrariness that

indeed ‘shocks the conscience.’” Miller, 174 F.3d at 375-76.

                                              7
       A.     Procedural Due Process Claim Regarding the Ex Parte Proceeding

       The Dennises contend that their procedural due process rights were violated by the

County, Ms. Wertz, Ms. McGettigan, and Ms. Giancristiforo because they were not

provided with a pre-deprivation hearing before B.D. was placed in foster care upon his

discharge from the hospital. Because CYS knew in advance that it would seek protective

custody of B.D., the parents contend that it was improper for CYS to seek an

“emergency” ex parte order for protective custody on the day of his release.

       The District Court correctly held, however, that the County’s failure to provide the

parents with a pre-deprivation hearing did not amount to a violation of procedural due

process because a post-deprivation hearing was held within 72 hours. As we have held,

“[i]nitiating child custody proceedings by ex parte orders is generally constitutional if a

prompt post-deprivation hearing is held.” See Miller, 174 F.3d at 372 n.4. The Due

Process Clause requires “the opportunity to be heard at a meaningful time and in a

meaningful manner,” which was provided to the Dennises here. See Mathews, 424 U.S.

at 333 (internal quotation marks omitted).3 In any event, the individual defendants were

properly accorded absolute immunity with respect to this claim, in which the Dennises

seek to impose liability for the employees’ conduct in formulating and presenting

3
  In depositions, the CYS defendants consistently testified that it is generally the practice
of CYS not to petition for protective custody while a child is hospitalized with severe
injuries because the hospital is considered a safe environment and because of the
uncertainties about a child’s prognosis prior to release. A ruling in the Dennises’ favor
would require CYS to petition for custody as soon as it knows it will oppose a child’s
return home after a hospitalization, even while the child is still hospitalized, despite the
fact that the hospital provides a safe environment and, in some cases, the child’s release
is uncertain.
                                              8
recommendations to the court. See B.S., 704 F.3d at 265; Ernst v. Child & Youth Servs.

of Chester Cnty., 108 F.3d 486, 495-96 (3d Cir. 1997) (holding that child welfare

employees “are entitled to absolute immunity for their actions on behalf of the state in

preparing for, initiating, and prosecuting dependency proceedings”). On appeal, the

Dennises do not challenge the Court’s determination with respect to absolute immunity,

and we need not address it further.

       B.     Substantive Due Process Claims Regarding the Ex Parte Proceeding

       Next, the Dennises argue that the County, Ms. Wertz, Ms. McGettigan, and Ms.

Giancristiforo interfered with their fundamental right to control and direct the care of

their son when those defendants refused to place B.D. with the Stevensons upon his

release from the hospital, as his parents had requested. They also claim that defendants

violated their substantive due process rights when they misrepresented in the ex parte

memorandum submitted to Judge Fitzpatrick that there were no kinship resources

available to care for B.D., that reasonable efforts had been made to prevent placement,

and that medical foster care was needed. The Dennises argue that defendants made these

misrepresentations in retaliation for Mrs. Dennis’s and the Stevensons’ belief in Mr.

Dennis’s innocence.4


4
  The Dennises also contend that by proceeding ex parte, the County defendants deprived
them of the right to challenge the court’s finding that “reasonable efforts” had been made
to prevent the placement of B.D. in foster care. (See App. at 578.) Because Judge
Fitzpatrick’s order stated that reasonable efforts had been made to prevent placement of
B.D., the parents state that Pennsylvania law prevented them from asking the Master to
revisit that issue at the 72-hour hearing. See 55 Pa. Admin. C. § 3140.111(B)(1)(iv).
Both parties appear to acknowledge that the Master lacked the authority to place B.D.
                                              9
       The Dennises’ claims against the County fail because, as the District Court

recognized, and as the Dennises do not challenge on appeal, they set forth no evidence to

establish (1) that the alleged misrepresentations in the ex parte memorandum constituted

policy or custom of the County or that the statements were made by a policy-making

official, or (2) that it was the policy of the County to require a full home study of the

parents’ preferred caregivers when the parents and the preferred caregivers maintain the

parents’ innocence. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)

(holding that a municipality can only be held liable under § 1983 “when the alleged

constitutional transgression implements or executes a policy, regulation or decision

officially adopted by the governing body or informally adopted by custom”) (citing

Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978)).

       Even if we concluded that the Dennises set forth sufficient facts to establish that

the County acted in conformance with an established policy or custom, we would agree

with the District Court’s conclusion that neither the representations in the ex parte

memorandum nor the decision to require a full home study of the Stevensons prior to

placement “shock the conscience.” (See App. at 362-63 n.79, 363-64.) We also agree

with the Court’s conclusion that the individual CYS defendants are absolutely immune

from liability for their conduct in presenting recommendations to the court.


with the Stevensons instead of other foster parents. While this could be construed either
as a procedural or substantive due process claim, the crux of the argument is that
defendants violated the parents’ constitutional rights by facilitating the placement of B.D.
with foster parents other than the Stevensons, which we construe to be a substantive due
process claim.
                                             10
       C.     Procedural Due Process Claim Regarding the Dependency Petition

       The Dennises contend that the District Court erred in determining that the failure

of CYS to file the dependency petition within 48 hours of the initial hearing did not

violate their constitutional right to procedural due process. As the Court correctly

observed, however, the dependency petition was filed 10 days in advance of the

scheduled adjudicatory hearing, providing the parents with adequate notice of the

allegations. Although the petition was not filed in strict compliance with the time

required by state law, the question of “what process is due” for purposes of the Due

Process Clause is a matter of federal constitutional law, not state law. Cf. Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).5

       The Dennises also argue that the District Court erred when it held that they

needed to prove actual damages in order to prevail on this claim. While they are correct

that nominal damages may be appropriate to remedy a violation of procedural due

process, see B.S., 704 F.3d at 273, we need not reach the issue of damages because we

conclude, for independent reasons, that no procedural due process violation occurred.

       D.     Substantive Due Process Claim Regarding Visitation

       Finally, the Dennises contend that the District Court erred in granting summary

judgment on their claim that the County violated their substantive due process rights by


5
  The District Court also held, and the Dennises do not challenge on appeal, that they
failed to establish that the defendants’ failure to comply with state law resulted from any
policy or custom of the County, as required for municipal liability, and failed to establish
that Ms. Germond (the only individual defendant against whom this claim was asserted)
was responsible for the delay in filing the petition.
                                               11
refusing to allow Mrs. Dennis more than one hour per week of visitation while the

dependency proceeding was pending, attributing this decision to “Defendant” Beth

Prodoehl, an employee of CYS. Ms. Prodoehl, however, was not named as a defendant

with respect to this count (Count V of the Amended Complaint), and at oral argument on

the parties’ cross motions for summary judgment, the Court denied the parents’ oral

motion to amend Count V to add Ms. Prodoehl as a defendant.

       In any case, the District Court did not err in concluding that the parents failed to

demonstrate that the County acted arbitrarily or in a way that “shocks the conscience” by

failing to recommend or permit additional visitation for Mrs. Dennis. There was no

evidence that CYS acted arbitrarily or maliciously to limit Mrs. Dennis’s visitation.6

Contrary to the Dennises’ assertions on appeal, CYS had a reasonable basis to believe

that B.D. needed to be protected from Mrs. Dennis, including the fact that she continued

to insist that the injuries were not caused by abuse despite the fact that CYS had medical

evidence to the contrary. In addition, both Judge Coll and the Guardian Ad Litem took

the position that B.D. should not be returned to Mrs. Dennis’s care until completion of

the adjudicatory hearing. The Court also did not err in concluding that the fact that Mrs.

Dennis maintained her own and her husband’s innocence was not an arbitrary or

irrelevant factor for CYS to consider in evaluating visitation, given the concern that Mrs.

Dennis might fail to protect B.D. from Mr. Dennis if granted unsupervised visitation.


6
 Indeed, Pennsylvania law required that Mrs. Dennis receive biweekly visitation, see 55
PA. ADMIN. C. § 3130.68, but CYS afforded Mrs. Dennis weekly visitation as well as the
opportunity to attend all of B.D.’s numerous medical and therapy appointments.
                                           12
IV.   Conclusion

      We will affirm the order of the District Court granting summary judgment.




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