                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2008

Brown v. Daniels
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3429




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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            ________________

                                  No. 06-3429
                               ________________

                     KEVIN E. BROWN; ERICA BROWN,
                                              Appellants

                                         v.

                           TINA DANIELS;
               BRANDY NEIDER, CPS INVESTIGATOR;
           BERKS COUNTY CHILDREN AND YOUTH SERVICES
                ____________________________________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                       D.C. Civil Action No. 03-cv-04242
                          (Honorable Petrese B. Tucker)
                 _______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                                June 19, 2007

      Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges.

                             (Filed: August 22, 2008)


                                ______________

                           OPINION OF THE COURT
                               ______________

PER CURIAM.

    Appellants Kevin and Erica Brown, proceeding pro se, appeal from the District
Court’s grant of Appellee’s motion for judgment as a matter of law, its rulings on two

motions in limine, and its denial of their motion to amend the complaint. For the reasons

that follow, we will affirm.

       This lawsuit arises out of events beginning on May 21, 2003, when Travonne, the

son of Erica Brown and stepson of Kevin Brown, was brought to Berks County Children

and Youth Services (“BCCYS”) by his maternal aunt. Based on the aunt’s allegations

that Kevin Brown had physically abused his stepson, Tina Daniels, a BCCYS caseworker,

initiated an investigation. Daniels attempted to contact both of the Appellants by phone

and followed up with separate letters to each of them the following week explaining that

Travonne and his sister were residing with their maternal grandmother and that “a plan

for guardianship or custody needs to be decided as soon as possible in order to resolve the

matter.” A hearing was scheduled for June 25, 2003, approximately four weeks later, and

was then continued until July 9, 2003 at Erica Brown’s request, with Travonne to remain

with his maternal grandmother until further notice. At the July 9 hearing, the Juvenile

Court directed the family to begin counseling and ordered that Travonne remain with his

grandmother under the “protective supervision” of BCCYS.

       On August 11, 2003, Appellants filed the underlying complaint in the United

States District Court for the Eastern District of Pennsylvania. In it, they alleged that

BCCYS, Daniels, and Supervisor Brandy Neider violated their substantive due process

rights by examining Travonne without their consent, notifying Kevin Brown’s employer



                                              2
of the abuse allegations, and harassing them during the healing process. They further

alleged that Appellees violated their procedural due process rights by taking Travonne

into custody without promptly conducting a hearing. On Appellees’ motion, the District

Court dismissed the action for failure to state a claim upon which relief could be granted,

and in the alternative, held that Appellees were entitled to qualified immunity. On appeal,

we affirmed in part, upholding the dismissal of BCCYS, Neider, and Appellants’

substantive due process claims from the action. We vacated and remanded the District

Court’s judgment with respect to claims that Daniels violated Appellants’ procedural due

process rights, holding that Appellants had sufficiently alleged a violation of their

procedural due process rights to survive a motion to dismiss.

       Following our remand, the District Court held a two-day trial in which Erica

Brown represented herself. During the course of the trial, Brown elicited testimony from

Kevin Brown and other family members regarding the events of May 21. The testimony

indicated that, upon learning that her children were at her mother’s house, Brown went to

the police station that evening to request police assistance in getting the children back.

She was told that there was a protection from abuse (“PFA”) order in place, and that the

police could not assist her. All of her witnesses testified that the Browns returned from

the police station unsuccessful in getting their children back. The remainder of the

testimony at trial focused on the emotional, psychological and economic damages

suffered by the Brown family as a result of the children’s removal from their home.



                                              3
Appellants did not call any representatives of the police department or BCCYS as

witnesses. At the close of Appellants’ case, Daniels moved for judgment as a matter of

law, which motion the District Court granted in an oral opinion. Appellants then filed a

motion for reconsideration which the District Court denied in a written opinion and order

entered on June 19, 2006. Appellants timely filed a notice of appeal.

       Appellants challenge four of the District Court’s rulings in this appeal: (i) its grant

of Appellee’s motion for judgment as a matter of law pursuant to Federal Rule of Civil

Procedure 50(a); (ii) its grant of Appellee’s motion in limine to dismiss Kevin Brown

from the action for lack of standing; (iii) its denial of Appellants’ motion in limine to

exclude certain BCCYS files from the trial; and (iv) its denial of Appellants’ motion to

amend their complaint.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We note first

that Appellants failed to order a transcript of the proceedings as required by Federal Rule

of Appellate Procedure 10(b)(1). Appellee has urged us to dismiss Appellants’ first three

claims on this ground. See Fed. R. App. P. 3(a)(2); see also Horner Equip. Intern., Inc. v.

Seascape Pool Ctr., Inc., 884 F.2d 89, 92-93 (3d Cir. 1989). However, because

Appellants are proceeding pro se and in forma pauperis, we ordered the court reporter to

prepare a transcript of the trial testimony pursuant to 28 U.S.C. §§ 753(b) & 1915(c).

Accordingly, we will not dismiss Appellants’ claims.

       We exercise plenary review over a District Court’s entry of judgment as a matter



                                              4
of law. See Goodman v. Pennsylvania Turnpike Comm’n, 293 F.3d 655, 664-65 (3d Cir.

2002). As with grants of summary judgment, the reviewing court “must draw all

reasonable inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S.

133, 150 (2000). Generally, a Rule 50 motion should be granted only if the evidence is

not sufficient for a jury reasonably to find liability. Lightning Lube, Inc. v. Witco Corp.,

4 F.3d 1153, 1166 (3d Cir. 1993); see also Fed. R. Civ. P. 50(a) (permitting entry of

judgment as a matter of law when “a party has been fully heard on an issue during a jury

trial and the court finds that a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party on that issue”).

       At the close of Appellants’ case, Appellee moved for, and the District Court

entered, judgment as a matter of law. In its written opinion and order denying

Appellants’ motion for reconsideration, the District Court explained that it had granted

Appellee’s motion based on its conclusion that Appellants had failed to present sufficient

evidence to support a finding that their son had been taken into “protective custody”

within the meaning of 23 Pa. Cons. Stat. Ann. § 6315, or, assuming he was in “protective

custody,” that Daniels had acted unreasonably in not initiating a hearing within 72 hours.

Appellants contest the District Court’s conclusion, arguing that under 55 Pa. Code

§ 3490.57, placement of children with relatives constitutes protective custody, and

therefore they should have been afforded a hearing within 72 hours.



                                               5
       Appellants’ claims are grounded in the Child Protective Services Law (“CPSL”),

23 Pa. Cons. Stat. §§ 6301-6386. Section 6315 permits a child to be taken into

“protective custody” if it is immediately necessary for the child’s protection. That section

further requires that the parents be immediately informed of the whereabouts of their

children, specifies that an informal court hearing must be held within 72 hours to

determine whether “to allow the child to remain in the home would be contrary to the

welfare of the child,” 23 Pa. Cons. Stat. § 6315(d); see also 42 Pa. Cons. Stat. Ann.

§ 6332(a), and defines the “place of detention” as “an appropriate medical facility, foster

home or other appropriate facility approved by the department for this purpose.” 23 Pa.

Cons. Stat. § 6315(e). The section of the Pennsylvania Code referred to by Appellants in

their brief provides:

       A child taken into protective custody may be placed only in the following
       locations:

              (1) A hospital, if hospitalization is medically necessary in the
       opinion of the attending physician.
              (2) A home of a relative of the child or other individual who has a
       significant relationship with the child or the child’s family. The home shall
       be approved by the county agency for this purpose.
              (3) A foster family home approved by a licensed foster family care
       agency.
              (4) A licensed residential child care facility.

55 Pa. Code § 3490.57(d). That section further provides that protective custody “may not

be maintained longer than 72 hours without an informal hearing under section 6332 of the

Juvenile act (relating to informal hearing).” 55 Pa. Code § 3490.57(a).



                                             6
       Against this backdrop, Appellants maintained throughout trial that they were not

afforded a hearing within 72 hours of Travonne’s placement by Appellee with his

grandmother, and therefore, their procedural due process rights were violated. The

District Court held that Appellants’ claim must fail as a matter of law because they failed

to present sufficient evidence to support a finding that Travonne had been taken into

“protective custody” within the meaning of 23 Pa. Cons. Stat. Ann. § 6315, or, assuming

that he was in “protective custody,” that Daniels had acted unreasonably in not initiating a

hearing within 72 hours.

       In entering judgment as a matter of law, the District Court focused on the

procedures required under state statute when a child is taken into protective custody. We

agree with the District Court that Appellants did not set forth sufficient evidence at trial to

support a finding that Travonne was taken into “protective custody” within the meaning

of 23 Pa. Cons. Stat. Ann. § 6315. However, an inquiry into whether Appellants were

afforded all of the process they were due cannot end there. It is well settled that state law

does not define the parameters of due process for the purposes of the Fourteenth

Amendment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)

(“[O]nce it is determined that the Due Process Clause applies, the question remains what

process is due. The answer to that question is not to be found in the [state] statute.”)

(citation and internal quotation marks omitted); Swipies v. Kofka, 419 F.3d 709, 716 (8th




                                              7
Cir. 2005) (holding that “a state statute cannot dictate what procedural protections must

attend a liberty interest . . . as this is the sole province of federal law”).

       Whether or not under the facts of this case, compliance with the procedures set out

in the CPSL conforms with the requirements of federal due process is an issue we need

not decide here because we can affirm on other grounds. See Nicini v. Morra, 212 F.3d

798, 805 (3d Cir. 2000) (en banc) (concluding that we may affirm the District Court on

any grounds supported by the record). “The fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”

Matthews v. Eldridge, 424 U.S. 319, 333 (1976). Whether Appellants’ procedural due

process rights were violated by Appellee’s failure to schedule a hearing regarding the

placement of their son with sufficient promptness can be determined by a balancing of

three factors:

       First, 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.

Id. at 334035; see also Miller v. City of Philadelphia, 174 F.3d 368. The private interest

here is the right to family integrity, which this Court has indicated must be balanced

against the state’s interest in protecting children suspected of being abused. See Miller,

174 F.3d at 373; Croft v. Westmoreland County Children & Youth Serv., 103 F.3d 1123,




                                                 8
1125 (3d Cir. 1997). As explained in Patterson v. Armstrong, 141 F. Supp. 2d 512

(W.D. Pa. 2001):

              . . . While not dispositive, the statutory schemes adopted by the
       Pennsylvania legislature in the familial integrity arena are highly relevant to
       this Court’s consideration of the second and third factors. . . .
              The “additional or substitute procedural safeguards” that the
       defendants should have followed in this case were those carefully crafted
       and interlocking procedures of the CPSL and the Juvenile Act. The
       “probable value” of following the legislatively mandated procedures,
       providing for quick judicial review, is in the greatly reduced risk of
       erroneous interference with parental rights and the integrity of the family
       unit. Similarly, the legislature obviously considered the fiscal and
       administrative burdens that would fall on child protective services agencies
       and local law enforcement officials charged by the CPSL, the Juvenile Act,
       the PFA Act with protecting the safety and welfare of children and with
       safeguarding the constitutional rights of parents and the family, and enacted
       related legislation mandating specific procedural requirements. The
       Pennsylvania General Assembly must be presumed to have intended those
       burdens be carried by the appropriate local officials.

Id. at 538.

       It is well-settled that “in emergency circumstances which pose an immediate threat

to the safety of a child, officials may temporarily deprive a parent of custody without

parental consent or a court order.” Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir.

1997). However, “in those extra-ordinary situations where deprivation of a protected

interest is permitted without prior process, the constitutional requirements of notice and

an opportunity to be heard are not eliminated, but merely postponed.” Suboh v. District

Attorney’s Office of Suffolk, 298 F.3d 81, 92 (1st Cir. 2002) (citations and internal

quotation marks omitted). Thus, “[w]hen the state removes a child from her parents, due



                                              9
process guarantees prompt and fair post-deprivation judicial review.” Berman v. Young,

291 F.3d 976, 985 (7th Cir. 2002); see also Miller v. City of Philadelphia, 174 F.3d 368,

372 n.4 (3d Cir. 1999) (“Initiating child custody proceedings by ex parte orders is

generally constitutional if a prompt post-deprivation hearing is held.”).

       There is no bright-line rule for deciding whether a post-deprivation hearing is

sufficiently “prompt. See Tower v. Leslie-Brown, 326 F.3d 290, 299 (1st Cir. 2003)

(approving post-deprivation hearing three days after children’s removal); Berman, 291

F.3d at 985 (concluding that 72-day delay was “rather outrageous,” but finding no actual

damages); Whisman v. Rinehart, 119 F.3d 1303, 1310 (8th Cir. 1997) (concluding that

hearing held 17 days after the state had taken custody was not “prompt”); Jordan v.

Jackson, 15 F.3d 333, 351 (4th Cir. 1994) (concluding that 65-hour delay in judicial

review of emergency removal was “near, if not at, the outer limit of permissible delay”);

Cecere v. City of New York, 967 F.2d 826, 829-30 (2d Cir. 1992) (concluding that 4-day

delay was constitutionally permissible); Lossman v. Pekarske, 707 F.2d 288, 290 (7th Cir.

1983) (approving 12-day delay, based on parents’ request for additional time to prepare).

       The evidence introduced at trial indicates that, on May 21, while Travonne may

not have been in “protective custody,” he was residing at his grandmother’s house and

Appellants were unable to regain physical custody of him due to the presence of the PFA

order. It further reveals that the first dependency hearing was scheduled for June 25, at

least four weeks after Travonne began residing with his grandmother. The hearing was



                                             10
then continued for two weeks at Appellants’ request. On July 9, 2003, the Juvenile Court

ordered that Travonne remain with his grandmother pending permission from his therapist

to return home. According to Kevin Brown’s testimony, Travonne did not return home

until over six months after the hearing.

       Whether or not the hearing here satisfied due process “promptness,” we will affirm

the judgment of the District Court. In order to prevail on a § 1983 claim where a

“prompt” post-deprivation hearing was not conducted after the removal of a child, a

plaintiff must establish “with some degree of probability[] that a timely hearing would

have prevented the extended infringement on their familial rights. In other words, [she]

must demonstrate actual damages resulting from the delay in the post-deprivation

hearing.” Berman v. Young, 291 F.3d 976, 985 (7th Cir. 2002) (internal citation and

quotation omitted); see also Carey v. Piphus, 435 U.S. 247, 264 (1978) (holding that, in

order to obtain compensatory damages for mental and emotional distress caused by denial

of procedural due process, plaintiff must adduce proof that the injury was caused by the

deprivation of due process). Here, Appellants did receive a hearing on July 9, 2003, at

which time the juvenile court judge ordered that Travonne remain with his grandmother.

There is no indication in the record that had the hearing been conducted earlier, a

different result would have been reached. Thus, because the state court approved the

placement of Travonne with his grandmother on July 9, and in light of the testimony

presented at trial, we conclude that Appellants have not demonstrated any compensable



                                            11
injury resulting from the delayed hearing. See Berman, 291 F.3d at 985 (concluding that,

“especially given that the state court approved the removal” of the child from her home,

the parents could not demonstrate any injury resulting from the delayed hearing); see also

Lossman, 707 F.2d at 291 (holding that, even if a hearing had been conducted earlier, the

result presumably would have been the same, and therefore, causation did not exist).

Accordingly, we will affirm the District Court’s entry of judgment as a matter of law on

Appellants’ procedural due process claim.

       Appellants’ next two claims are that the District Court erred in granting Appellee’s

motion in limine to dismiss Kevin Brown from the action immediately prior to the start of

the trial for lack of standing and in denying their motion in limine to bar Appellee from

introducing at trial materials from her files from the abuse investigation. Under the

CPSL, only a “parent, guardian or other custodian” is entitled to a hearing. See 23 Pa.

Cons. Stat. Ann. § 6315. Because Kevin Brown had no legal relationship with Travonne,

the Court held that he would not have been entitled to a hearing and therefore lacked

standing to assert a violation of his due process rights on this basis. While Appellee

certainly placed the Browns at a disadvantage by raising this issue on the day of trial, it is

clear that standing can never be waived. See United States v. Hays, 515 U.S. 737, 742

(1995). Accordingly, we will affirm the District Court’s dismissal of Kevin Brown as a

party to this action. We will also affirm the District Court’s denial of Appellants’ motion




                                              12
in limine, as it is clear that the materials Appellants sought to suppress were relevant and

necessary to Appellee’s defense.

       Finally, Appellants contest the District Court’s denial of their motion to join

certain parties to the complaint. We review the District Court’s denial of Appellants’

motion to amend their complaint for abuse of discretion. See Garvin v. City of

Philadelphia, 354 F.3d 215, 219 (3d Cir. 2003). Appellants maintain that they attempted

to file a motion for joinder of additional parties on July 11, 2005. In the motion, they

sought to add, as plaintiffs, their minor children, and as defendants, Alfred Crump, a

Solicitor for BCCYS, Wendie Ziegler, a Court-Appointed Guardian ad litem, and James

Trupp, a BCCYS caseworker. The motion did not appear on the District Court’s docket

until February 21, 2006, six days before trial was originally scheduled to begin. The

Court adjourned the trial date, gave Appellee an opportunity to respond, and on May 11,

2006, denied the motion and re-scheduled the trial for late May.

       While the motion was captioned under Rule 19 of the Federal Rules of Civil

Procedure, the Court properly analyzed it under Rule 15, which governs the amendment

of pleadings. Relying on Rule 15(c), the District Court held that the motion for leave to

amend had been filed outside of the applicable statute of limitations, and that Appellants

had not offered any evidence to show that the proposed defendants had received either

actual or imputed notice of the action within 120 days of filing the complaint. See

Singletary v. Pennsylvania Dep’t of Corrs., 266 F.3d 186, 194 (3d Cir. 2001).



                                             13
Accordingly, the Court held that Appellants could not satisfy the relation back

requirements, and therefore, denied their motion to amend.

       Appellants argue that they filed the motion on July 11, 2005, within the statute of

limitations, but that it was not entered on the Court’s docket until February 21, 2006. In

light of this discrepancy, we will not affirm the District Court’s decision on this basis.

We will, however, affirm on other grounds. See Nicini, 212 F.3d at 805. While Federal

Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given when

justice so requires,” it may be denied when amendment would be futile. Appellants claim

that both Crump and Ziegler discriminated against them on the basis of race by objecting

to the reunification of Appellants’ family in the context of the dependency proceedings.

Based on the record below, we conclude that Crump and Ziegler would have been entitled

to absolute immunity for their roles in Appellants’ dependency proceedings. See Ernst v.

Children & Youth Servs. of Chester County, 108 F.3d 486, 495 (3d Cir. 1997)

(defendants entitled to “absolute immunity for their actions on behalf of the state in

preparing for, initiating, and prosecuting dependency proceedings”). In light of the

proposed defendants’ immunity, Appellants would have been unable to withstand a

motion to dismiss, and therefore amendment would have been futile. See Hill v.

Scranton, 411 F.3d 118, 134 (3d Cir. 2005).




                                              14
       We will also affirm the District Court’s denial of Appellants’ motion to amend the

complaint to add caseworker James Trupp as a defendant.1 See Nicini, 212 F.3d at 805.

Appellants allege that Trupp discriminated against them on the basis of race and violated

their rights to due process and family integrity by contacting Dr. Thomas Baker, a

psychologist who was appointed by the Juvenile Court to evaluate the family, and

requesting a copy of his assessment without Appellants’ consent, objecting to the

reunification of the family at the dependency hearing, and seeking to remove Erica

Brown’s daughter from her custody. Appellants’ allegations against Trupp do not

demonstrate violations of their constitutional rights. The transcript from the July 9, 2003

Juvenile Court hearing clearly indicates that the court ordered that Dr. Baker’s report be

made available to the guardian and the agency. Trupp’s objection to the reunification of

the family and his participation in dependancy proceedings likewise do not amount to

violations of Appellants’ constitutional rights. See Miller v. Philadelphia, 174 F.3d 368,

377 (3d Cir. 1999) (holding that, to constitute a substantive due process violation, a social

worker’s conduct must “shock the conscience”); Croft v. Westmoreland County Children

& Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997) (“The right to familial integrity, in

other words, does not include a right to remain free from child abuse allegations.”).




   1
    We note that Appellants initially sought to add Trupp as a defendant on October 13,
2003, two months after the initial complaint was filed. The District Court denied
Appellants leave to amend without prejudice pending its ruling on Appellees’ motion to
dismiss.

                                             15
       Finally, Appellants sought to add their minor children as plaintiffs in the action.

As pointed out by Appellee, Appellants, as non-lawyers, would not be permitted to

represent their children in an action in federal court. See Osei-Afriyie v. Medical College

of Pennsylvania, 937 F.2d 876, 884 (3d Cir. 1991). As Appellants’ proposed

amendments would have been futile, we conclude that the District Court did not abuse its

discretion in denying appellant’s motion for leave to amend.

       Accordingly, we will affirm the judgment of the District Court.




                                             16
