                                                                                                                           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Precedential or Non-Precedential: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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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
