# Hayes v. ERIE COUNTY OFFICE OF CHILDREN AND YOUTH

> District Court, W.D. Pennsylvania · March 29, 2011 · 804 F. Supp. 2d 356

URL: https://www.frixlaw.com/law-library/cases/2180863

## Case

- **Full name:** Charles HAYES and Victoria L. Hayes, Administrators of the Estate of Brittany Legler, Deceased, Plaintiffs, v. ERIE COUNTY OFFICE OF CHILDREN AND YOUTH, Et Al., Defendants
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 29, 2011
- **Citations:** 804 F. Supp. 2d 356; 2011 U.S. Dist. LEXIS 32597; 2011 WL 1201194
- **Precedential status:** Published
- **Opinion:** Opinion by McLAUGHLIN
- **Judges:** Sean J. McLaughlin
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2180863

## Opinion text

MEMORANDUM OPINION
SEAN J. McLAUGHLIN, District Judge.
This civil action arises out of a tragic case in which Brittany Legler, a mentally handicapped teenager, was killed at the hands of her adoptive mother, Lisa Iarussi. Plaintiffs Charles Hayes and Victoria L. Hayes, the Administrators of Brittany’s estate, have brought this lawsuit against the Erie County Office of Children and Youth (“OCY”) and several of its present or former employees,
1
claiming, among other things, that the Defendants violated Brittany’s federal civil rights by virtue of their involvement in first placing Brittany with Iarussi and later failing to adequately investigate or address numerous reports of suspected abuse perpetrated upon Brittany by Iarussi.
Presently pending before the Court is a motion by the Defendants for summary judgment. This Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331 , 1343(a) and 1367(a). For the reasons set forth below, the motion will be granted.
I. STANDARD OF REVIEW
In adjudicating a motion for summary judgment, we apply the well-established legal standard presently set forth in Fed. R.Civ.P. 56(a), pursuant to which summary judgment shall be granted when no genuine dispute exists as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
“A
disputed fact is ‘material’ if it would affect the outcome of the suit as determined by the substantive law,”
Bouriez v. Carnegie Mellon Univ.,
585 F.3d 765, 771 (3d Cir.2009) (citation omitted), and a factual dispute is “genuine,” and thus warrants trial, “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, 477
U.S. 242, 248-49, 252, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). Accordingly, in order for a claim to survive summary judgment, “there must be [significantly probative] evidence on which the jury could reasonably find for the plaintiff.”
Id.
For purposes of Rule 56, we assume that the non-moving party’s allegations are true and give the non-moving party the benefit of the doubt when those allegations conflict with the moving party’s claims.
Valhal Corp. v. Sullivan Assocs.,
44 F.3d 195, 200 (3d Cir.1995). However, summary judgment must be entered against any party unable to present sufficient evidence in support of an essential element of a claim because “a complete
*359
failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett,
477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986).
With this standard in mind, we review the evidence of record. Except as otherwise indicated, the following facts are undisputed.
II. BACKGROUND FACTS
A.
Events Leading to Brittany’s Adoption
Brittany Legler first came into contact with OCY in 1998 when her biological family was referred to the agency for general neglect. (Defs.’ Ex. 24 [126]
2
at ¶¶ 4-5.) In December of 1998, the case was assigned to Defendant Carol Gallagher, an ongoing services case worker for OCY.
(Id.
at ¶ 6; Defs.’ Ex. 9 [81] at pp. 2, 10.)
3
Gallagher was supervised at the time by Defendant Cindra Vallone. (Defs.’ 9 [81] at pp. 2,10; Ex. 24 [126] at ¶ 2.)
Initially, Brittany and her siblings were placed in the care of their biological father due to the fact that their mother had allowed a known perpetrator of sexual abuse to have access to the children. (Defs.’ Ex. 9 [81] at p. 30.) However, the children were later removed from their father’s care when concerns surfaced that the father himself might be committing sexual abuse. (Defs.’ Ex. 24 [126] at ¶¶ 7-14.)
Brittany was found to be a dependent child by the Erie County Court of Common Pleas and detained at a foster home placement because of a finding of neglect, excessive truancy, and lack of supervision, exposure to known sexual perpetrators, and possible sexual abuse. Her placement into foster care occurred on April 12, 1999. (Defs.’ Ex. 24 [126] at ¶ 7; Defs.’ Ex. 9 [81] at p. 6.)
In July of 1999, Brittany began receiving counseling services through the Sexual Abuse Initiative Program run by Family Services of Northwest Pennsylvania. At that time, it was reported that Brittany was developmentally delayed, had a history of sexual abuse, and had been in the presence of a known perpetrator when in her mother’s care. In her foster care placement she was displaying aggressive and manipulative behavior and was having difficulty understanding personal safety issues. (Defs.’ Ex. 19 [91] at p. 1.)
Over the course of the ensuing months, Brittany disclosed to Gallagher that she didn’t want to live with her father and his girlfriend, stating that the girlfriend was “mean” and “locks them out of the house” (Defs.’ Ex. 24 [126] at ¶ 8.) Eventually, Brittany further disclosed that she had suffered sexual abuse at the hands of her father and his girlfriend, which resulted in the matter being taken up by law enforcement authorities.
(Id.
at ¶¶ 9-14.)
Brittany continued to reside in foster care from April 1999 to May 2000. Although she suffered no major problems in that setting, a decision was made to find a permanent placement for Brittany, as her foster family was not interested or able to make a commitment to adopt. (Defs.’ Ex. 9 [81] at pp. 6-8.)
*360
Meanwhile, Brittany’s biological mother had been residing with several of Brittany’s younger siblings at the Mercy Center for Women, where she received counseling and other services designed to prepare her for a return to independent living. As the end of the 1999-2000 school year approached, it remained OCY’s goal to eventually reunify Brittany with her biological mother. (Defs.’ Ex. 9 [81] at p. 8; Ex. 4 [76] at p. 2.) During a May 2, 2000 court hearing, OCY requested another six-month period for purposes of maintaining the goal of reunifying Brittany with her mother. In response, the juvenile court issued an order allowing OCY to proceed with a concurrent plan of attempting to find an alternative placement for Brittany while simultaneously pursuing the goal of reunification. (Defs.’ Ex. 9 [81] at pp. 8-9.)
At some point while Brittany was still in foster care, Lisa Iarussi was identified as a possible permanent placement source for Brittany. Iarussi was a former classmate and friend of Brittany’s mother, who had known Brittany since her infancy and had frequently cared for her. (Defs.’ Ex. 4 [76] at p. 2.)
In April of 2000, OCY contracted with Family Services of Northwestern Pennsylvania to perform a kinship family profile of Iarussi. The profile was performed by Ann Badach, an adoption caseworker, and summarized in a report dated July 27, 2000. (Defs.’ Ex. 24 [126] at ¶ 15; Defs.’ Ex. 4 [76].)
In the course of conducting her study, Badach had several contacts with Iarussi, including three interviews of Iarussi at her mobile home in Millcreek Township. Badach reported that Iarussi was motivated to provide kinship care for Brittany partly because of the “close bond she has developed with Brittany over the years since her birth.” (Defs.’ Ex. 4 [76] at p. 2.)
Badach’s study involved obtaining Iarussi’s biographical information, from which she learned that Iarussi had been diagnosed as a child with Attention Deficit Disorder (“ADD”) and “ ‘some type’ of developmental delay” which had resulted in her receiving special education instruction during her grade school years. (Defs.’ Ex. 4 [76] at p. 4.) After dropping out of high-school and attending cosmetology school, Iarussi had become involved with a man whom she subsequently married at age 17. This marriage, which Iarussi described as “very immature,” lasted only a few months.
(Id.
at p. 5.) Following this break-up, Iarussi suffered a period of depression, which resolved successfully following a two-year period of treatment with Zoloft.
(Id.
at p. 6.)
Iarussi subsequently became involved in a 12-year relationship with an individual who suffered from alcohol addiction and who subjected Iarussi to emotional and physical abuse, including one incident which had resulted in the individual being arrested and jailed overnight for physically beating her. After quitting this relationship, Iarussi subsequently became involved with another man by whom she became pregnant. This individual became addicted to crack cocaine and left Iarussi shortly after the birth of their daughter, Abigail (hereinafter, “Abby”). (Defs.’ Ex. 4 [76] at p. 6.)
At the time of her study, Badach found that Iarussi was living alone in a 14 x 80 mobile home with Abby, who was then four-years old. Iarussi was reportedly unable to hold steady employment due to her ADD but was receiving assistance in the form of food stamps, a monthly SSI check, and disability benefits for “ADD/Depression and a (untitled) Learning Disability.” (Defs.’ Ex. 4 [76] at pp. 5, 7.) Iarussi was also seeing a counselor at St. Vincent Behavioral Health in order to, as Badach described it, “assist her in steadying her sense of self-esteem and self-image due to
*361
years of suffering abuse in relationships.”
(Id.
at p. 5.) According to the report, Iarussi had a supportive family and several close friends and felt her life was on a “solid footing.”
(Id.)
She felt proud of her accomplishments as a single parent and had set a personal goal of becoming self-sufficient, employed, and a homeowner within five years.
(Id.)
As a parent, Iarussi was felt to display a responsible attitude. Badach described her parenting style as “fairly calm and stable” and reported that Iarussi enjoyed being a parent and had a close bond with her daughter Abby, whom she loved very much. (Defs.’ Ex. 4 [76] at p. 6.) Badach found Abby to be a bright, cheerful, and inquisitive child who was fond of Brittany and enjoyed Brittany’s company.
(Id.)
Iarussi advised Badach that her plan for caring for Brittany was to parent Brittany in the same way that she had parented Abby.
(Id.)
As part of her study, Badach conducted clearance checks with the City of Erie Police Department, the Pennsylvania State Police, OCY, and the Pennsylvania Department of Public Welfare’s ChildLine. None of these sources reported any negative information concerning Iarussi. In addition, Badach requested access to Iarussi’s records from St. Vincent Behavioral Health. After initially agreeing to this request, Iarussi revoked her consent, citing the fact that she preferred to not allow disclosure of her patient records until she established a stronger, long-term bond with her counselor. (Defs.’ Ex. 4 [76] at pp. 6-7.)
Badach’s study also involved feedback from four references, all of whom expressed support for Iarussi’s interest in providing kinship care for Brittany. (Defs.’ Ex. 4 [76] at pp. 7-9.) One of the four references was Plaintiff Victoria L. Hayes, Iarussi’s biological sister. In a written reference dated May 19, 2000, Hayes described Iarussi as “a lot of fun” and someone whose strengths included the fact that she “loves being around children!,] reading to them, caring for them[.] [A]ny child would benefit from her care.” (Defs.’ Ex. 3 [75] at p. 1.) As to Iarussi’s weaknesses, Hayes wrote that, “Lisa worries a lot [sic] which in this day & age you almost have no choice. It’s better to be a worrier than not ...”
(Id.)
She described Iarussi’s personality as “a very sweet girl. She would give you the world on a silver platter if she could. She loves people
&
has many friends.”
(Id.)
Hayes responded positively when asked whether she felt Iarussi would be able to provide a good home for Brittany: “[Lisa] is wonderful with children. I have six children of my own & everyone of them adore her. She would take good care of any child. It’s just her nature.”
(Id.)
Asked whether she had observed Iarussi with children, Hayes wrote, “She is really good with children. She listens alot [sic]. She can come down to their level so that the child knows that she understands
&
cares.”
(Id.
at p. 2.) In commenting on Iarussi’s experience or training, Hayes wrote, “I wouldn’t say she has alot [sic] of experience but her caring ways about her mean she’ll do a great job
&
children just attract to her ...”
(Id.)
She further commented: “Lisa will make a wonderful foster mother to Brittany. They’ve always had a great relationship & I think Brittany feels safe with Lisa. Lisa will show her the best ways to get through life & keep out of trouble.”
(Id.)
Asked whether she had any reservations about recommending her sister as a care-giver, Hayes wrote, “I have no doubt in my mind that Lisa will be a terrific care giver to any child. Especially to Brittany[.] [T]hey have already formed a close bond to each other.”
(Id.)
A second individual who had been a neighbor and friend of Iarussi’s for approximately five years indicated that she
*362
felt “honored” to provide a reference for Iarussi. According to Badach, this source “described [Iarussi] as a person who displays mature judgement [sic], initiative, and devotion to children” and reportedly knew Iarussi to be “a calm and effective planner who is considerate and understanding of others.” (Defs.’ Ex. 4 [76] at p. 8.) This individual claimed to have no reservations about recommending Iarussi as a kinship caregiver; she “believe[d] that Lisa would be able to provide a good home for any child, as she has had Lisa care for her own seven-year-old on occasion.”
(Id.)
In fact, this individual went to far as to say that she would recommend Iarussi over her own family members as a child care provider.
(Id.)'
A third source who had known Iarussi for over ten years as a neighbor and a Mend described her (in Badach’s words) as “a very giving and caring person who is outgoing and mixes very well with all kinds of people.” (Defs.’ Ex. 4 [76] at p. 8.) This woman reported having no reservations about recommending Iarussi as a kinship care provider and believed that Iarussi would be able to provide a good home. In addition, this individual claimed to have had occasion to observe Iarussi interacting with Brittany and reportedly “indicated that Lisa treats Brittany with the same kindness and respect that she does to her own daughter, Abby.”
(Id.)
A fourth reference, who had been Mends with Iarussi for three years, described her as a caring, loving, and sentimental person whose strengths were being able to relate well to children. This source believed that Iarussi would be a very good kinship parent for Brittany and indicated that she would not hesitate to entrust her own children to Iarussi’s care. (Defs.’ Ex. 4 [76] at pp. 8-9.)
Badach’s report, dated July 27, 2000, reflects her own impression that Iarussi was a “committed caregiver of children”' and someone who could provide the “stability and continuity” that Brittany would need. (Defs.’ Ex. 4 [76] at p. 10.) It was noted that Iarussi had set a “lofty goal” in planning to be a self-sufficient homeowner within five years, and Badach expressed concern that this goal might be too difficult for Iarussi to meet, given her limited financial means. “In addition,” Badach noted,
Lisa is very guarded about her personal life. Initially, she was very agreeable to allow this worker access to her historical files with St. Vincent Behavioral Health, and, subsequently, her current counsel- or. However, the day after signing consents, Ms. Iarussi phoned this agency and spoke to a colleague in an anxious tone, requesting she receive the signed consents to destroy- — -thereby denying access to any of her counseling records or therapists. At her request, this worker did return the signed consent for Ms. Iarussi to destroy. She indicated that she felt uncomfortable allowing access to information from “long ago” and also, most recent information from a (counseling) relationship that had barely begun to develop. (She had, at the time of consent, only met with her counselor twice.) Her cooperation was often shadowed by some sense of anxiety or distrust, which made some contents of her interviews rather difficult to attain. The type and scope of her “learning disability” and subsequent ADD diagnosis, resulting in SSI and Social Security Disability, are still not totally clarified nor understood by this worker.
(Id.)
Nonetheless, Badach felt Iarussi’s desire to care for Brittany was “certainly authentic.”
(Id.)
She also felt that Iarussi had managed very well as a single parent to Abby, who was well-behaved, listened well, and showed her mother love and respect.
(Id.)
*363
Badach summed up her evaluation and recommendation by noting that Iarussi had “numerous strengths and abilities,”
to wit:
She is caring, compassionate, and devoted to her own child and to the desire to care for Brittany full-time. She is organized and structured in her environment and has a keen sense of responsibility as a homemaker and parent. In addition, Lisa has a strong support network of family and friends who have offered to help her in a variety of ways, if necessary.
Lisa and Brittany have known each other since Brittany was very young. Lisa has been her primary caregiver many times, for many days at a time....
(Defs.’ Ex. 4 [76] at p. 11.) Badach thought it would be beneficial for the family to have continuous support services in place while Iarussi transitioned from a part-time to a full-time caregiver and parent.
(Id.)
“In addition,” Badach noted, “as Lisa continues to explore her own personal issues with a therapist, it would be helpful to allow her an opportunity to work collectively with a professional in parenting a child with a known history of being a victim of abuse herself. It is hoped that Ms. Iarussi will not ‘take on’ the issues of Brittany upon herself as she works through her own history of abuse, as well.”
(Id.)
While Badach’s study was in progress, OCY took steps to facilitate Brittany’s placement with Iarussi on an interim basis. On June 9, 2000, Gallagher and Vallone filed a request with the juvenile court for permission to transfer Brittany into Iarussi’s home pending the next permanency hearing, which was scheduled for the following November. In support of this request, Gallagher and Vallone stated that:
Brittany ... has had several weekend visits at the home of her prospective caretaker, Lisa Iarussi, and the visits have been uneventful and positive for Brittany. The homestudy process has been completed and this placement is recommended. The homestudy report is not yet prepared in written form, but according to Ann Badach of Family Services, the Iarussi home will be approved. Brittany completes the school year on June 9, 2000, and the child and prospective caretaker desire immediate placement.
(Pis.’ Appendix 1 [116-1] at p. 16 (emphasis added).) Copies of OCY’s request were sent to the attorney representing Brittany’s parents, as well as to Christine Jewell, Esq., Brittany’s appointed guardian ad litem, and Sheila Baldwin, her Court Appointed Special Advocate (CASA).
(Id.)
On June 13, 2000, Baldwin sent a letter to the juvenile court concurring with the request to place Brittany with Iarussi. Baldwin’s only stated concern at that point was that Brittany continue her counseling through the Sexual Abuse Initiative and that Iarussi be included in the counseling so as to address safety concerns for Brittany. Baldwin noted in her letter that, “Although there had been some concern about Ms. Iarussi complying with this order, at this point in time she has agreed to do so.” (Defs.’ Ex. 6 [78] at p. 1.)
The juvenile court approved the placement request on June 15, 2000. (Pis.’ Ex. Vol. 1 [116-1] at p. 15.) At this point, Brittany left her foster care home and began living with Iarussi on a full-time basis.
Following her placement with Iarussi, Brittany continued to receive various “Wraparound” services coordinated through the Sexual Abuse Initiative (“SAI”) of Family Services of Northwestern Pennsylvania. This Behavioral Health Rehabilitative Services Team — informally referred to as the “Wraparound Team” — -included Danielle Szklenski, Su
*364
pervisor of the SAI, who also served as the team facilitator. Additional members of Brittany’s team included, among others, Defendant Gallagher, Ann Badach, Sheila Baldwin, representatives from the Mental Retardation Base Services Unit, a child specialist from the Mercy Center, Therapeutic Staff Support (TSS) workers providing behavioral support services to Brittany and, generally, any other case worker, therapist, psychologist, or other service provider working with Brittany and/or her biological family. (See Defs.’ Ex. 17 [89] at pp. 2-8; Defs.’ Ex. 18 [90] at pp. 1-5.) The purpose of the team was to provide a multi-disciplinary, collaborative approach to the various coordinated interventions that Brittany and her family were receiving. (Defs.’ Ex. 17 [89] at pp. 6-8.)
During the time period June 2000 through May of 2001, while Brittany was living with Iarussi but prior to her adoption, there were various discussions among the Wraparound Team members regarding Brittany’s progress. (Defs.’ Ex. 17 [89] at p. 12.) On some occasions, Brittany’s biological mother, her maternal grandmother, and Iarussi were present, along with the team members.
(Id.
at pp. 12-14; Defs.’ Ex. 18 [90] at pp. 1-5.) Reports from the team meetings suggest that a degree of conflict developed between Iarussi and Brittany’s mother over matters of visitation and perceived criticisms by Iarussi concerning the choices and actions of Brittany’s mother.
One such incident was noted at an August 30, 2000 meeting of the Wraparound Team.
(See
Defs.’ Ex. 18 [90].) As of that date, Brittany was seeing her mother and siblings twice a month through prearranged visits.
(Id.
at p. 1.) She had just started the school year and was reportedly doing well.
(Id.
at p. 2.) However, some two weeks earlier a disagreement had arisen when, at the start of a prescheduled visit between Brittany and her mother, Iarussi had requested that Brittany return early in order to attend a family picnic. That day happened to be the mother’s birthday and, wanting Brittany to stay for her entire allotted visitation time, Brittany’s mother refused the request.
(Id.
at pp. 1-2.) Gallagher and Szklenski agreed that the visits should occur on the prescheduled dates and times unless an agreement to do otherwise were reached in advance. There was also a request by Brittany’s mother to have more regular phone contact with Brittany, which she claimed was not occurring.
(Id.
at p. 2.) Other discussions centered around Brittany’s mother’s finances, her improved interaction with her children, and her goal of obtaining independent, safe housing.
(Id.
at p. 4.)
On September 20, 2000, the Wraparound Team met again, this time with both Iarussi and Brittany’s mother present. It was noted that Brittany was enrolled in the sixth grade life skills classes at her new school and she had not engaged in any sexualized behaviors over the past several weeks. The team identified numerous “strengths” in Brittany — namely, that she was cute and friendly, she liked spending time with her mother and siblings, she interacted well with other children, she was loving and caring and enjoyed school, she loved Iarussi’s daughter Abby, she had participated in various summer outings and activities, and she enjoyed math and gym and riding her bike. The team also noted that “[c]urrently, a great deal of tension ha[d] been mounting” between Brittany’s mother and Iarussi, and it centered around Iarussi limiting contact between Brittany and her mother. (Defs.’ Ex. 20 [92] at p. 1.)
One week later, the Team reassembled and generated a progress update. Brittany’s mother and Iarussi were both present,
*365
once again, for the team meeting. At this September 27, 2000 meeting, Iarussi apologized for being critical of Brittany’s mother and indicated a willingness to allow Brittany contact with her mother outside of her own home. Brittany’s mother was slow to accept the apology and expressed a distrust of Iarussi and a continued interest in being reunited with Brittany. Defendant Gallagher cautioned, however, based on discussions with Defendant Vallone, that if reunification were to occur and then subsequently fail, Brittany’s mother could end up losing all four children. Both Iarussi and Brittany’s mother agreed to the team’s recommendation to resolve their conflict by attending counseling with an independent psychologist. (Defs.’ Ex. 21 [93].)
On October 16, 2000, Danielle Szklenski submitted a summary of Brittany’s status to the juvenile court.
(See
Defs.’ Ex. 19 [91].) Szklenski noted that Brittany was residing in a well-kept mobile home with Iarussi and her daughter Abby and that Brittany was succeeding socially and academically at school. Brittany’s diagnosis, reviewed as of September 20, 2000 by Martha Eichenlaub, a licensed psychologist, was ADHD, Sexual Abuse of a Child, and Mental Retardation. She had completed counseling at Rape Crisis of Erie County and was seeing her mother and four siblings twice monthly at the Mercy Center for Women.
In her summary report, Szklenski noted the “strengths” that the team had identified for Brittany at its September 20, 2000 meeting, adding also that Brittany “has two women ([her mother and Iarussi]) who both love her very much.”
(See
Defs.’ Ex. 19 [91] at p. 2.) Szklenski also discussed Brittany’s various needs, including the need to define and make permanent a long-range plan regarding residency, the need for Iarussi to formalize a safety plan to prevent sexual touching of Abby by Brittany, and the need for Iarussi and Brittany’s mother to resolve their conflicts and minimize hostility so as to ease the tension this was creating for Brittany. Szklenski noted that she had not yet explored Brittany’s prior trauma, as Brittany seemed anxious about the uncertainty of her future and the focus thus far had been on stabilization.
(Id.)
With regard to her current living situation, Szklenski reported,
It seems that Brittany feels very connected to the Iarussi family. In fact, when asked to draw a picture of her family, she first drew Lisa and Abby, whom she has recently begun to refer to as “mom” and “sister,” respectively. Brittany later added her biological siblings and grandparents to the picture and, finally, added her mother after I encouraged her to add anyone who was missing. It should be noted that Lisa [Iarussi] was present during this activity.
(See
Defs.’ Ex. 19 [91] at p. 3.)
Szklenski also reported on the tension that had built between Brittany’s mother and Iarussi relative to Brittany’s custodial arrangement:
It seems that Brittany is experiencing loyalty conflicts related to the hostility and conflict that has existed between Lisa Iarussi and [her biological mother]. On two occasions reported to this worker, Brittany looked to Lisa for “permission” to greet her mother and has been reluctant to interact with her mother in Lisa’s presence. However, when this worker has observed Brittany during her family visits at the Mercy Center, Brittany has shown no hesitation in interacting with [her mother] or [her siblings] and, in fact, expresses disappointment when the visits come to an end and she has to return to Ms. Iarussi’s.
*366
The hostility between [Brittany’s mother] and Lisa seems to have historical roots. [Mother’s] friend from high school, Lisa reports anger with [Brittany’s mother] over the bad parenting choices she’s made and their impact on her children. Lisa reports attempting to influence [Brittany’s mother] to make better choices. Further, Lisa reports feeling used by [Brittany’s mother] to care for Brittany off and on since she was an infant, with no monetary support. Initially, Lisa reported' to this worker that she wanted to adopt Brittany and, after it was final, she would not permit Brittany to have contact with [her mother].
[Brittany’s mother] reported feeling betrayed by her friend, Lisa, as Lisa continued to loudly criticize [her] and her past mistakes to workers involved. She felt that Lisa was not recognizing the positive changes she has made in her life. [Brittany’s mother] reported that Lisa offered to care for Brittany many times in the past and that Brittany was not constantly forced on her. [Brittany’s mother] feared that Lisa was taking her daughter from her as Lisa attempted to shorten Brittany’s visits with [her biological family], [Brittany’s mother] began to worry that if adopted by Lisa, Brittany would be out of her life forever. This fear has prompted [Brittany’s mother] to be even more determined to have Brittany returned to her care.
The Child & Family Team arranged for private counseling for Lisa and [Brittany’s mother], by [a] licensed psychologist, to address their conflict and to help them create a plan for Brittany’s care to be presented to the team and to the court. Through these sessions and through their efforts to mend the relationship, the two women are now interacting with each other more positively. Lisa reports agreeing to continue Brittany’s visits with her biological family even if she adopts her. [Brittany’s mother] seems pleased with this but is reluctant to trust in this completely. She continues to want Brittany returned to her care, despite the promise of continued contact. [Brittany’s mother] reports it has always been her goal to have all of her children returned to her....
(Defs.’ Ex. 19 [91] at pp. 3-4.) Brittany’s mother appeared to be more comfortable with the custodial arrangement of one of her other children, who had been placed with a family member. Because that placement involved a family relation, Brittany’s mother felt she had greater access to her child and trusted that she would be portrayed more favorably to her children.
(Id.
at p. 4.)
Although Szklenski did not feel it was her role to make a placement recommendation, she enumerated several reasons for the court to consider reunifying Brittany with her mother, as well as several reasons for it to consider involuntary termination of parental rights and adoption by Iarussi. With respect to reunification, Szklenski noted:
1. [Brittany’s mother] has complied with her service plan, and attended all scheduled sessions.
2. While continued work is needed and is occurring, [Mother] has made tremendous gains in parenting three children, with TSS support, while living at the Mercy Center for Women.
3. [Mother] has saved over $1,000, at this writing, to be used toward establishing independent living.
4. [Mother] is moving toward securing an independent residence with a target date of January 2001.
5. [Mother] is open to continued involvement with case management, Wraparound services and TSS sup
*367
port to assist, as needed, outside of the Mercy Center.
6. [Mother] has paid down a significant portion of her previous debt and if she continues as scheduled, will have no debt at the time she leaves the Mercy Center in January 2001.
7. [Mother] has not been afforded the opportunity to attempt to parent four children at her present skill level.
8. [Mother] wants Brittany returned to her care.
9. The Mercy Center is willing to have Brittany move in, if the court approves.
10. [Mother] has improved her assertiveness skills, which was a risk factor contributing to her children’s previous abuse.
11. Brittany will have the opportunity to be raised by her mother and to strengthen her relationship with her mother.
12. Brittany will have the opportunity to grow up with three of her biological siblings.
13. Brittany is a cooperative child who is not difficult to manage.
14. [Mother] has agreed to allow Brittany to continue contact with Ms[.] Iarussi, at Ms. Iarussi’s request. It should be noted that Ms. Iarussi has stated that she wants no contact with Brittany if she cannot adopt her, as it would be difficult for her (Ms. Iarussi) emotionally.
(See
Defs.’ Ex. 19 [91] at p. 4.)
Szklenski offered the following reasons for the court to consider the involuntary termination of parental rights and adoption by Iarussi:
1.[Brittany’s mother] may not be able to care for four children safely and successfully, once outside of the supportive structure of the Mercy Center.
2. Due to Brittany’s easy and compliant nature, her needs may be overlooked by [Mother] due to the challenge and demand of caring for three other childrenf,] two of whom ... have behavior problems.
3. Brittany ... is safe and secure in the home of Ms. Iarussi and her daughter, Abby.
4. Ms. Iarussi and Brittany appear to share a strong emotional connection that originated when Brittany was an infant. •
5. Brittany has reported a desire to continue to live with Ms. Iarussi and her daughter.
6. Ms. Iarussi has expressed a willingness to continue counseling services for Brittany, if she adopts her.
7. Ms. Iarussi has agreed to allow Brittany to visit with her biological family, if she adopts her.
(See
Defs.’ Ex. 19 [91] at p. 5.)
On November 3, 2000, Brittany was referred to Donna Ziegler, Ph.D., for a psychological consultation due to questions concerning what disposition and/or placement options would best meet her emotional needs — specifically, whether Brittany should remain in her placement with Lisa Iarussi or be returned to the care of her mother. (Def.’s Ex. 25 [97] at pp. 2-3; Ex. 26 [98] at p. 1.) When questioned as to why she preferred to remain with Iarussi, Brittany replied that “she takes care of me” and that “she loves me.” (Defs.’ Ex. 25 [97] at pp. 10-12; Ex. 26 [98] at p. 2.) When asked why she would not prefer to return to her mother, Brittany responded that “she got to take care of those two” and “she needs to get out of the Mercy. She’s trying as hard as she can to get on her feet.” (Defs.’ Ex. 26 [98] at p. 2.)
*368
During the interview Brittany spontaneously mentioned that “she [Iarussi] keep us safe. She take care of us and feed us. She make me take a shower every night and Abby, ‘cause Lisa keep us safe to not touch anybody. Keep our hands to our self.” (Ex. 26 [98] at p. 3.) When queried about what she meant by “safe,” Brittany responded with “no bad stuff.”
(Id.)
When asked whether any “bad stuff’ had ever happened at her mother’s house, Brittany nodded affirmatively but then quickly changed the subject.
(Id.)
Dr. Ziegler considered it significant that Brittany had been taught to keep her hands to herself and that Brittany viewed this as part of Iarussi “taking care of’ her; to Dr. Ziegler, these comments were reflective of Brittany’s treatment for past victimization “and Lisa keeping some tabs on that.” (Ex. 25 [97] at pp. 15-16.) Brittany demonstrated feelings of closeness to Abby by drawing a picture of Abby alongside herself when asked to create a self-portrait.
(Id.
at p. 18.)
In eliciting responses from Brittany, Dr. Ziegler felt that Brittany’s comments were authentic and not the result of coaching. (Defs.’ Ex. 25 [97] at p. 12.) She noted that Brittany seemed to be experiencing anxiety about at a court hearing that was scheduled for later that day, especially the possibility of seeing her father there. (Defs.’ Ex. 25 [97] at p. 14; Ex. 26 [98] at p. 3.) When asked about what the judge might say at the hearing, Brittany responded, “[I]f my mom get me back or if Lisa get me. I don’t want to go back to my mom. I’ll probably watch [my younger siblings]. I’m only eleven.” (Ex. 26 [98] at p. 3.) Dr. Ziegler interpreted this as “an apparent reference to the expectation that she would be responsible in some ways for younger siblings, and her awareness that this expectation was excessive for her at her age.”
(Id.)
Although Brittany expressed sadness at the idea of losing contact with her biological siblings in the event she were adopted by Iarussi, she never expressed a desire to live with her mother and, in fact, Dr. Ziegler concluded that the opposite was true. (Pis.’ Ex. Vol. 1 [116-1] at p. 26.)
Psychological testing revealed that Brittany demonstrated clinically significant levels of depression, negative mood, interpersonal problems, feelings of ineffectiveness and anhedonia. (Defs.’ Ex. 26 [98] at pp. 3-4.) In Dr. Ziegler’s view, the depression was likely a result of Brittany’s psychosocial stressors, including apprehension about the potential outcome of the pending court hearing, the fact that she might encounter her father there, the fact that she might be returned to her mother, and concern that she might be separated from Abby and Iarussi.
(Id.
at p. 4; Ex. 25 [97] at p. 27.)
In spite of this, however, Dr. Ziegler felt that Brittany was well adjusted considering her significant history of sexual abuse and chronic neglect. (Defs.’ Ex. 26 [98] at p. 4.) On the whole, she presented a solid, positive self-esteem and no greater preoccupation with sexual issues than would be expected in light of her history. She was able to verbalize her preferences and support them with very relevant needs and perceptions based upon her own security and safety issues. It was felt that Brittany “clearly associate^] a return to her mother’s care with high expectations that are not appropriate for her, i.e., for care and supervision of her younger siblings.” (Defs.’ Ex. 26 [98] at p. 4; see also Ex. 25 [97] at pp. 21-24.)
Dr. Ziegler concluded by making the following recommendations:
1. Continued placement in the current foster care/ adoptive kinship home is highly recommended. I believe that Brittany has adequate insight into her own needs and motives at this point in time and that she also rec
*369
ognizes her safety and security needs are currently being met in this placement. Additionally, she clearly stated that she does not want to return to the care of her mother.
I believe Brittany’s level of adjustment in this home and in school are further indicators of the appropriateness of this placement.
2. A psychiatric evaluation is recommended to consider anti-depressant medication.
3. It is recommended that Brittany participate in a regimen of art therapy to assist in working through the psychological issues surrounding the history of abuse, the reason for her out-of-home placement, and the likely termination of material rights.
4. It is highly recommended that dispositional decision include the possibility of continuing supervised visits with the biological siblings.
(Defs.’ Ex. 26 [98] at pp. 4-5.) In making these recommendations, Dr. Ziegler was never asked to interview Iarussi or review any her personal records. Dr. Ziegler viewed her role not as one where she was making an assessment of Iarussi’s fitness to parent; rather she viewed her role as being an independent evaluator and advocate for Brittany. (Pis.’ Ex. Vol. 1 [116-1] at pp. 34-35.)
On November 3, 2000, the same day that Brittany was evaluated by Dr. Ziegler, the juvenile court held a hearing to consider whether the parental rights of Brittany’s biological parents should be involuntarily terminated and/or whether Brittany should continue permanently in the care of Iarussi. At the hearing, OCY took the position that it was in Brittany’s best interest to terminate parent rights and to proceed toward adoption by Iarussi. However, in a report submitted by OCY at the November 3 hearing, the Agency candidly advised the court that members of the Wraparound Team disagreed with this plan. In relevant part, this report, as read into the present record, stated as follows:
Although the Agency believes that it is in the best interest of Brittany to file a petition to terminate parental rights and to proceed with the adoption of Brittany by Ms. Iarussi, pending administrative and legal review and approval, the Agency is also obligated to inform the court of Ms. Kris Petulla and the members of the wrap team’s disagreement with this permanency plan.
Members of the wrap team believe mother should be given the opportunity to parent Brittany based on her progress at the Mercy Center. The progress is well documented in the reports submitted by Danielle Szklenski, supervisor of the Sexual Abuse Initiative. The Agency acknowledges the current level of progress made by mother and the fact that she cares deeply for Brittany. The Agency is deeply concerned with mother’s success.
(Defs.’ Ex. 9 [81] at p. 31-32.) OCY’s concerns about reunifying Brittany with her mother appear to have stemmed from the fact that Brittany’s mother was mentally challenged and had a history of making bad decisions.
(Id.
at 42.)
Those present at hearing and, thus, privy to the Wraparound Team’s objections, included not only the juvenile court judge but also Brittany’s CASA (Baldwin), her guardian ad litem, her natural parents, and their attorney. (Defs.’ Ex. 9 [81] at pp. 30-34.) In fact, an objection was raised at the hearing by counsel for Brittany’s mother concerning Brittany’s continued placement with Iarussi, as Brittany’s mother still wanted to be reunified with her daughter. There was also talk during the November 3, 2000 hearing concerning whether another family that had already adopted one or two of Brittany’s siblings
*370
might want to take Brittany in. (Defs.’ Ex. 9 [81] at p. 38.) Although the details of that discussion are not part of this record, it appears that neither OCY nor Baldwin considered this to be in Brittany’s best interest.
{Id.
at pp. 38-39; Defs.’ Ex. 6 [78] at p. 6.) Ultimately, the court deferred making a ruling at the November 3 hearing pending the receipt of Dr. Ziegler’s written report. (Defs.’ Ex. 9 [81] at pp. 34-35.)
Following the completion of Dr. Ziegler’s report on November 16, the juvenile court entered an order, dated November 21, 2000, in which it found the following with respect to Brittany:
A. Placement continues to be necessary and appropriate
D. Living in the home of a parent or another root relative is contrary to the welfare of the child, removal from the home of a parent or another relative is in the child’s best interests, and reasonable efforts have been made, as fully set forth on the record.
E. The appropriate and feasible placement goal for the child is adoption.
F. The child is safe.
(Defs.’ Ex. 24 [126] at ¶ 29.)
The following day, Baldwin issued a letter to the court in which she expressed support for OCY’s permanency plan. In her letter, Baldwin represented that “Brittany is thriving in the home of Lisa Iarussi and she clearly states that this is where she wishes to remain.” (Defs.’ 6 [78] at p. 5.) Baldwin further remarked that the permanency plan was not “haphazard”; rather, “a lot of thought and preparation ha[d] gone into making it a successful placement for Brittany,” and, moreover, “[t]he professional service providers who [were] working with [Brittany’s] family [were] also in support of it.”
{Id.)
Copies of the letter were ostensibly sent to Gallagher and Brittany’s guardian ad litem, as well as the attorney representing Brittany’s mother.
Baldwin corresponded with the court again on December 12, 2000 to reiterate her support for OCY’s permanency plan. Elaborating, Baldwin wrote:
The plan for Brittany to eventually be adopted by Lisa Iarussi was carefully made with Brittany’s best interests foremost in mind. Ms. Iarussi has been a constant, safe, stable source in Brittany’s life. Ms. Iarussi and her daughter have been a family to Brittany. [Brittany’s mother] recommended Ms. Iarussi as a possibility for permanent placement a year and a half ago.
(Defs. Ex. 6 [78] at p. 6.)
The letter went on to address the suggestion, apparently raised by counsel for Brittany’s mother at the November 3, 2000 hearing, that an alternative placement resource might exist for Brittany. Although Baldwin considered this alternative resource to be “a very generous person who sincerely wants to help in any way that she can,” Baldwin noted that a Family Preservation Specialist had worked with that family for six months and did not recommend that Brittany be placed with them, as the family had already taken in two of Brittany’s siblings as well as their own adult daughter and her son. (Defs. Ex. 6 [78] at p. 6.) Although she felt “sure they would all be loving to Brittany,” Baldwin recommended against placing Brittany with this family because they lacked the space for another child and the arrangement, Baldwin felt, would not be in Brittany’s bests interests.
(Id.)
Baldwin concluded:
Brittany is emotionally bonded to the Iarussis. She is being lovingly cared for. I am sure Brittany could adjust to another situation, but I think a move would be emotionally harmful to her.
*371
Brittany’s interests are best served in the Iarussi home.
(Id.)
Both Gallagher and Brittany’s guardian ad litem were copied on this letter.
(Id.)
During the latter part of 2000, when, as Szklenski put it, “things were coming to a head in terms of whether or not the recommendation was going to be for Brittany to return to her mother or for rights to be terminated,” (Pis.’ Ex. Vol. 1 [116-1] at p. 38), Szklenski observed that Iarussi was becoming increasingly “agitated [a]bout the possibility of losing Brittany.”
(Id.)
Specifically, Szklenski and Iarussi had some conversations around this time during which Iarussi yelled and expressed anger over what she perceived to be a lack of support for her efforts to become Brittany’s caregiver.
(Id.)
According to Szklenski, Iarussi also expressed her feeling that “perhaps she should just give Brittany back, because it would be so damaging to her emotionally if she lost Brittany, if Brittany didn’t live with her.”
(Id.)
This agitation, which was continuing to be expressed in an ongoing basis, led to some concerns on Szklenski’s part about Iarussi’s emotional stability.
(Id.
at 37-39.) Szklenski was also aware that Iarussi, in connection with Badach’s kinship care study, had revoked her consent relative to the release of her records from St. Vincent Behavioral Health. (Pis.’ Ex. Vol. 1 [116— 1] at p. 47.)
Accordingly, at some point in January or February of 2001, Szklenski contacted Gallagher to “suggest that perhaps they should consider a psychological or a psychiatric evaluation] for Lisa, because of her instability.” (Pis.’ Ex. Vol. 1 [116-1] at p. 41;
see id.
at 37, 39.) In light of Iarussi’s revocation of consent relative to her mental health records, it was Szklenski’s belief that “perhaps an evaluation would clarify some things.”
(Id.
at p. 47.) Gallagher informed Szklenski that she would discuss the matter with her supervisor, Defendant Vallone. (Pis.’ Ex. Vol. 1 [116-1] at pp. 40, 43.)
Several weeks later, Szklenski contacted Gallagher again to inquire whether OCY had considered her suggestion about a psychological or psychiatric evaluation. (Pis.’ Ex. Vol. 1 [116-1] at pp. 41.) According to Szklenski, Gallagher inquired, either directly or indirectly, whether Szklenski felt that Brittany was at risk of physical abuse or in danger in Iarussi’s home, and Szklenski indicated that she did not believe so. (Defs.’ Ex. 17 [89] at pp. 49-50;
see also id.
at pp. 52-53; 64.) Gallagher also communicated to Szklenski that, “if [she] felt, or anyone felt, that Brittany were in physical danger, that [OCY] would certainly act on that.”
(Id.
at 50-51;
see also id.
at p. 54.) Accordingly, the issue of a psychological evaluation was not pursued further because “it was felt that [an evaluation] was not warranted.”
(Id;
Defs.’ Ex. 17 [89] at p. 48.)
On March 6, 2001, Brittany’s parents voluntarily relinquished their parental rights with respect to her, thus clearing the way for her adoption by Iarussi. (Pis.’ Ex. Vol. 2 [116-2] at p. 16.) After this development, according to Szklenski, things seemed to settle down and her concerns over Iarussi’s emotional stability began to diminish. (Defs.’ Ex. 17 [89] at pp. 58, 61-62.)
In April of 2001 Brittany’s case was transferred from Gallagher to Defendant Michael Hughes. (Defs.’ Ex. 9 [81] at p. 4.) At this point in time, according to Hughes, the decision had already been made by OCY to pursue permanent adoption by Iarussi and Hughes’ responsibilities included monitoring her case for the few months preceding the adoption and getting all the final paperwork in order. (Defs.’ Ex. 13 [85] at p. 2.) During this time Hughes met with Brittany and Iarus
*372
si on a monthly basis at Iarussi’s home to discuss adoption issues.
(IcL
at pp. 7-8.) Hughes also supervised a final visit between Brittany and her biological family approximately one month before the adoption.
(Id.
at p. 7.)
The following month, the juvenile court held another permanency hearing. On May 7, 2001, the court entered an order finding, among other things, that:
A. Placement continues to be necessary and appropriate * * *
D. Living in the home of a parent or another root relative is contrary to the welfare of the child, removal from the home of a parent or another relative is in the child’s best interests, and reasonable efforts have been made, as fully set forth on the record.
E. The appropriate and feasible placement goal for the child is adoption.
F. The child is safe.
(Defs.’ Ex. 24 [126] at ¶ 30.)
On July 31, 2001, the orphan’s court issued an order setting the adoption hearing for August 22, 2001. (Pis.’ Ex. Vol. 2 [116-2] at p. 32.) The order directed that “[a] home study shall be performed and submitted to verify the statements of the [adoption] Petition and to provide such other facts as will give the Court full knowledge of the desirability of the proposed adoption.”
(Id.)
In addition, the order directed that “[a] Child Line Clearance and Pennsylvania State Police Criminal Record Check shall be submitted to the Court no later than the time of the scheduled hearing ...”
(Id.)
There is no documentation in the present record to confirm whether these measures were undertaken. According to Hughes, home studies generally have to be updated every year, at least for Child Line and criminal history clearances, or if there are changes with respect to medical or financial concerns. (Defs.’ Ex. 13 [85] at p. 4.)
In any event, the orphan’s court approved Iarussi’s adoption of Brittany on August 22, 2001. (Pis.’ Ex. Vol. 2 [116-2].) At the hearing, Hughes appeared on behalf of OCY in his capacity as Brittany’s caseworker and recommended that the court approve the adoption.
(Id.
at p. 14.) He certified to the court that OCY Iarussi had been provided OCY’s full file concerning Brittany’s medical history and social history.
(Id.
at p. 17.) Hughes further testified that Brittany had no particular physical, emotional, or social difficulties and that she was “basically a normal, healthy child,” although he also acknowledged that she had been diagnosed as mentally retarded and was receiving social security disability benefits.
(Id.
at p. 18.)
Iarussi also testified at the hearing. She represented to the court that she was a homemaker with no employment but that she had the financial means to support Brittany. (Pis.’ Ex. Vol. 2 [116-2] at pp. 21-22.) She acknowledged that Brittany was receiving social security benefits and that the adoption was a permanent arrangement.
(Id.
at p. 22.) She agreed that she had received all of OCY’s medical and social history records and that it was her desire to adopt Brittany.
(Id.
at 22, 25.) She denied being induced, forced or pressured by anyone to enter into the adoption and agreed that it was a knowing and voluntary decision on her part.
(Id.
at pp. 25-26.)
As the foregoing events demonstrate, there were many individuals who had contact with Brittany, her biological family, and/or her prospective adoptive family between April 22, 1999, when she was declared a dependent, to August 22, 2001, when she was finally adopted by Iarussi. The record includes deposition testimony from many of these individuals.
*373
Sheila Baldwin
One such person was Baldwin, who served as a CASA for Brittany and her biological siblings. (Defs.’ Ex. 5 [77] at 10.) She was specifically assigned to Brittany’s case from April 22, 1999 to May 7, 2001.
(Id.
at pp. 2-3, 10-12.) As the CASA, Baldwin had access to all of Brittany’s court, medical, and school records.
(Id.
at pp. 4, 20.) In the course of her duties, Baldwin sometimes spent 20 to 25 hours per week working on Brittany’s case.
(Id.
at pp. 6, 20.) She reviewed all of the records on file at OCY concerning Brittany’s family, attended doctors’ appointments with Brittany and her siblings, and also visited the psychologist’s office.
(Id.)
At times she spoke with health care providers; sometimes she simply reviewed their charts.
(Id.
at p. 6.) Because Baldwin was part of the Wraparound Team, she also had access to all of the team’s records.
(Id.
at pp. 8-9; Defs.’ Ex. 17 [89] at pp. 14-16.) After Iarussi was identified as a possible placement source for Brittany, Baldwin became acquainted with her through various meetings, such as family visits and Wraparound Team meetings. (Defs.’ Ex. 5 [77] at p. 8.) During the course of her appointment as CASA, Baldwin had numerous occasions to observe Brittany and to discuss with her how she felt and how she was doing, both in school and in Iarussi’s home.
(Id.
at pp. 9-10.)
As CASA, it was Baldwin’s duty to act as the child’s voice in court and report to the court concerning what she believed to be in Brittany’s best interests. (Defs.’ Ex. 5 [77] at p. 4.) At no point during her service as CASA did Baldwin believe that Brittany was at risk for physical harm within Iarussi’s home.
(Id.
at pp. 21-22.) Quite to the contrary, Baldwin consistently supported Brittany’s placement there, as is evident from the letters she wrote to the juvenile court. Moreover, Baldwin could not recall anyone on the Wraparound Team ever raising concerns for Brittany’s safety in the Iarussi home, nor did she recall Brittany’s biological mother raising such concerns.
(Id.
at p. 22.)
Baldwin stated at her deposition that she could not recall being informed about Iarussi’s refusal to allow the release of her mental health treatment records and she denied having seen Badach’s kinship care profile on Iarussi. (Pis.’ Ex. Yol. 1 [116-1] at pp. 30, 32.) Although she could understand why some people are reluctant to sign consents concerning their mental health treatment, due to the stigma surrounding mental illness, Baldwin felt that a person seeking to adopt a child should sign those consents.
(Id.
at 31.) While she felt that Badach’s study contained important information, she was not sure that she would have included any of that information in her own report to the juvenile court.
(Id.
at 32.)
Danielle Szklenski
Another individual who had substantial contact with Brittany during this time was Szklenski. Szklenski provided ongoing services to Brittany from 1999 until May of 2001 through the Sexual Abuse Initiative. In addition, Szklenski was the facilitator of the Wraparound Team that was providing coordinated intervention for Brittany and her biological family. In these capacities, Szklenski had frequent contact with Brittany, sometimes on a weekly basis. (Defs.’ Ex. 17 [89] at pp. 2-12.) Between June of 2000, when Brittany began' living with Iarussi on a full-time basis, and May 2001, when Szklenski’s involvement ended, there were several team meetings which included discussions about Brittany’s placement in the Iarussi home.
(Id.
at pp. 10, 12.)
Szklenski noted that, during this period, Brittany was progressing well academically and socially at her middle school. (Ex. 17 [89] at p. 24.) No concerns were raised by Brittany’s counselors at Rape Crisis
*374
about her physical or emotional safety while living with Iarussi.
(Id.
at pp. 26-27.) In fact, no issues were identified by anyone at the team meetings concerning the placement with Iarussi itself.
(Id.
at pp. 28-29.) Nor were any concerns about Brittany’s safety in the Iarussi home raised by the court, Brittany’s CASA, Brittany’s guardian ad litem, or the lawyer representing Brittany’s parents.
(Id.
at pp. 36-37.) Notably, Szklenski herself did not believe Brittany to be physically at risk in Iarussi’s home.
(Id.
at p. 30.) In fact, in her October 2000 court summary, Szklenski opined that Brittany was “safe and secure” with Iarussi. This opinion was based on Szklenski’s own experience in providing safety services to Brittany; it was also partly informed by a psychological evaluation performed by Martha Eichenlaub as well as by Brittany’s interactions with other professionals on the team.
(Id.
at 38-40.)
Though Szklenski did feel that the developing conflict between Brittany’s mother and Iarussi might be emotionally detrimental to Brittany, Szklenski did not necessarily consider this situation to be unsafe or abusive, and she noted in her court summary that the two women had undertaken counseling to improve their relationship. (Ex. 17 [89] at 30-32.) In addition, Szklenski’s concerns about Iarussi’s emotional stability (which had led Szklenski to inquire in early 2001 about whether Iarussi should undergo a psychological evaluation) began to diminish, particularly after the issue of parental rights was resolved and the case moved toward adoption.
(Id.
at 58, 60-62.) At no point following her October 2000 court summary did Szklenski feel the need to contact the court, or any of the lawyers, in order to express concerns about Brittany’s placement with Iarussi.
(Id.
at p. 42; Pis.’ Ex. Vol. 1 [116-1] at p. 39.) At no point during her involvement with Brittany, even when Iarussi appeared angry and agitated, did Szklenski feel that Brittany was at risk of physical harm in Iarussi’s home. (Defs.’ Ex. 17 [89] at pp. 50, 54.)
Sherry Lacey
Sherry Lacey was another individual who had contact with Brittany through the Wraparound Team. As a Supports Coordinator for the Mental Retardation Base Service Unit, it was Lacey’s job to ensure that Brittany and her family were introduced to the appropriate mental retardation and mental health services available in the community. (Defs.’ Ex. 14 [86] at p. 4.) Although Lacey recalled some team meetings where members discussed the possibility of Brittany being placed permanently with Iarussi, Lacey did not recall any discussions where concerns were raised regarding Brittany’s safety in that environment.
(Id.
at p. 6.) In fact, Lacey’s own personal impression based on her interactions with Brittany and Iarussi was that “Brittany seemed happy to be there. Lisa appeared to genuinely care about her.”
(Id.
at p. 12.) Lacey never had any concerns for Brittany’s welfare while in Iarussi’s home.
(Id.)
Donna Ziegler
Donna Ziegler conducted a psychological evaluation of Brittany in November of 2000 for the purpose of making a recommendation to the court about Brittany’s “dispositional” options. (Defs.’ Ex. 25 [97] at pp. 2-3.) At that point in time, Brittany had been living with Iarussi for nearly five months. Dr. Ziegler found no indications that Brittany was suffering any type of abuse at the hands of Iarussi and, quite to the contrary, Dr. Ziegler formed the impression that Brittany was making a very good adjustment.
(Id.
at pp. 8, 10.) There was no evidence, in Dr. Ziegler’s opinion, that Brittany was being victimized in any way at the time that she was evaluated.
(Id.
at pp. 16-17, 24-26.) Based on
*375
her evaluation of Brittany, Dr. Ziegler recommended that Brittany remain in Iarussi’s home rather than return to her mother’s care.
(Id.
at p. 28.) Dr. Ziegler believed that Brittany recognized her own safety and security needs and, moreover, Brittany had communicated to Dr. Ziegler that these needs were being met and that she did not desire to return to the care and custody of her mother.
(Id.
at pp. 28-30.)
Brittany had also undergone two psychological evaluations conducted by Martha Eichenlaub, a certified school psychologist, for the benefit of Family Services, in February and September of 2000. The latter evaluation was conducted after Brittany had begun living full-time with Iarussi. In rendering her own professional opinions about which placement arrangement would best suit Brittany’s emotional and psychological needs, Dr. Ziegler considered and relied upon the Eichenlaub’s reports, neither of which had expressed any concern about physical abuse or bad parenting on the part of Iarussi. (Ex. 25 [97] at pp. 10, 24-26, 34-36.)
Ann Badach
Ann Badach was retained by OCY in April of 2000 to perform a study of the Iarussi home as a possible placement resource. Based on her assessment, which included detailed interviews with Iarussi in her home, criminal background and Child-Line checks, and references obtained from family and friends, Badach had no personal fears about this placement option for Brittany, nor any concerns that Iarussi would be a source of danger to Brittany. (Defs.’ Ex. 2 [74] at pp. 18-20.) At the time that her report was completed, no concerns had been expressed by anyone about Iarussi being abusive.
(Id.
at pp. 24-26.) Badach did have some concerns about certain “unknowns” relative to Iarussi’s personal issues, and she therefore recommended that Iarussi continue with the therapy she had recently undertaken relative to issues of self-esteem and goal setting.
(Id.
at p. 28.) Moreover, in light of Brittany’s past history of sexual victimization, Badach further recommended that Brittany and Abby have certain boundaries such as separate rooms.
(Id.)
However, these concerns were not enough to give Badach any reservations about Brittany’s placement in Iarussi’s home.
(Id.
at pp. 28.)
Carol Gallagher
Defendant Gallagher was Brittany’s OCY caseworker from December 1998 until April of 2001 when the case was transferred to Hughes. (Defs.’ Ex. 9 [81] at pp. 2-4; Defs.’ Ex. 29 [101] at p. 7.) During this time Gallagher met with Brittany at least on a monthly basis. (Defs.’ Ex. 29 [101] at p. 7.) These meetings occurred at various locations — initially in the home of Brittany’s father when she was still living there, later in Brittany’s foster home and then in Iarussi’s home, and also at various other places such as the Mercy Center for Women, Wraparound Team meetings, parent/child visitation sites, and school.
(Id.)
During these meetings, various other people were commonly present, including Brittany’s foster parents, Wraparound Team members, Mercy Center staff, and Brittany’s CASA.
(Id.)
Gallagher also had contact with Iarussi beginning in early 2000 both in Iarussi’s home and at the Mercy Center for Wraparound Team meetings. (Defs.’ Ex. 29 [101] at p. 8.) Following Brittany’s placement with Iarussi in June of 2000, Gallagher made monthly in-home visits there.
(Id.)
As part of her duties, Gallagher was involved in investigating the allegations of sexual abuse which Brittany disclosed relative to her father. (Defs.’ Ex. 29 [101] at p. 9.) These reports led to involvement on the part of law enforcement agencies. (Defs.’ Ex. 24 [126] at ¶¶ 9, 13-14.) Galla
*376
gher was also responsible for commissioning from Family Services the kinship care study of Iarussi which was performed by Badach.
(See
Ex. 4 [76] at p. 2; Ex. 24 [96] at ¶¶ 15-16.)
Gallagher did not view Badach’s report as revealing anything that suggested Iarussi was unfit to be a kinship care provider or potential adoptive parent to Brittany. (Defs.’ Ex. 9 [81] at p. 28.) Moreover, no comments were ever made during Gallagher’s conversations with Badach and her supervisor that indicated concerns on the part of Family Services about Brittany’s placement with Iarussi.
(Id.
at pp. 28-29.) In fact, Gallagher has testified that, from the time that Brittany was first placed with Iarussi in June of 2000 until Brittany’s case was transferred to Hughes in April of 2001, there were never any reports, to her knowledge, from ChildLine, other OCY workers, members of the Wraparound Team, the court, Brittany’s school, or any other source indicating that Brittany was being abused in Iarussi’s home.
(Id.
at pp. 39 — 40.)
Gallagher does acknowledge that, during the latter part of 2000, there was some disagreement among the Wraparound Team members as to whether or not reunification efforts should continue to be pursued or whether, instead, there should be a move toward an involuntary termination of rights from Brittany’s parents. However, this dispute was aired before the juvenile court, which held its decision in abeyance pending the results of Dr. Ziegler’s psychological evaluation. (Defs.’ Ex. 9 [81] at pp. 30-35.)
Victoria Hayes
Plaintiff Victoria Hayes is the sister of Lisa Iarussi and one of the individuals who provided a reference to Badach strongly supportive of Iarussi’s efforts to become Brittany’s caregiver. She contends that she provided the reference as a result of having been pressured by Iarussi and because she believed Iarussi was honestly trying to provide a better home for Brittany and was only seeking fair compensation and financial support for care-giving duties which she had been regularly providing anyway. (Pis.’ Ex. Vol. 2 [116-2] at pp. 7-8, 11; Defs.’ Ex. 12 [84] at pp. 3-4.) In filling out the questionnaire form entitled “Kinship/Foster-Adoption Reference,” Hayes insists that she believed her sister’s goal was merely to provide foster care for Brittany, not undertake an adoption. (Pis.’ Ex. Vol. 2 [116-2] at 9-11.)
Hayes claims that she did not lie about anything in providing a favorable recommendation for her sister, but she may have “exaggerated a little bit with the pressure from my sister on me constantly.”
(Id.
at p. 8.) Hayes states she did not really get along with Iarussi, whom she did not see often and whom she described as “an off the wall person,” but “not with a child.” (Pis.’ Ex. Vol. 2 [116] at p. 7, 9.) Although Hayes believed her sister was “good with children,” she did not take her own children over to Iarussi’s home because she felt Iarussi had weird friends and was loud and would swear. (Defs.’ Ex. 12 [84] at 2, 4.) When questioned how anyone would have known that Brittany’s arrangement with Iarussi would have ended so tragically, Hayes replied, “Probably all her friends would know. The people that she had were terrified of her.”
(Id.
at p. 6.) Yet, Hayes denies having personally had any concerns about physical violence in Iarussi’s home at the time she provided her favorable reference, or even when Brittany was adopted in 2001, because Hayes “never knew anything that was going on over there.”
(Id.
at p. 4;
id.
at p. 8.) She further admits that she never raised any concerns in May of 2000 when she wrote her evaluation, or in 2001 when she was called upon to support the adoption, about the possibility of Iarussi perpetrating physical violence on Brittany.
(Id.
at 10.)
*377
According to Hayes, “If OCY would have done their job, they would have seen that ... there’s no way anybody’s going to let Lisa adopt a child.” (Pis.’ Ex. Yol. 2 [116— 2] at p. 9.)
Rosemary Burroughs
Rosemary Burroughs is the biological maternal grandmother of Brittany and was sometimes present at meetings of the Wraparound Team. She has provided an affidavit in support of the Plaintiffs’ brief opposing summary judgment.
Burroughs maintains in her affidavit that OCY “pressured Brittany’s mother ... to give up her parental rights to Brittany” and “pushed for Iarussi o become Brittany’s mother by adoption.” (Pis.’ Ex. Vol. 3 [116-3] at p. 36, ¶¶ 3-4.) Burroughs claims that “[she] was against the adoption” and that she “knew Lisa Iarussi had a violent temper and a bad reputation for violence, including she beat up the sister of a news woman who was on WSEE TV-Channel 35.”
(Id.
at p. 36-37, ¶¶5-6.) Moreover, Burroughs claims that she was ignored by the Agency after “[telling] workers on Brittany’s case that I was against Iarussi adopting Brittany, that I was afraid for Brittany’s safety and I told them I wanted to be involved so I could be a watchdog for Brittany’s safety.”
(Id.
at p. 37, ¶¶ 7-8.)
4
Lisa Iarussi
Despite the notation in Badach’s study that Iarussi had revoked her consent to release records from St. Vincent Behavioral Health, no efforts were made by Badach, OCY personnel, or anyone else to further investigate this aspect of Iarussi’s profile. Had the records been uncovered, they would have revealed that, beginning in March of 2000, just months before Brittany was placed full-time in her care, Iarussi began receiving counseling for an explosive anger problem which involved both verbal outbursts and, at times, physical violence. (See
generally
Pis.’ Ex. Vol. 4 [116^] at pp. 3-22.) The records further reflect that Iarussi demonstrated poor stability and an unwillingness to take responsibility for her actions.
(Id.
at pp. 18-21.)
Iarussi claims that she told Gallagher that she did not believe herself capable of parenting a special needs child because of her own special needs. (Pis.’ Ex. Vol. 3 [116-3] at p. 45.) According to Iarussi, “I was on disability and I had issues of my own,” yet “[Gallagher] never questioned. ... Nobody in Children Services ever asked me why I was on disability.”
(Id.)
As Iarussi sees it, the “bottom line” is that
*378
Children Services did not do their job and check me out thoroughly. They just knew that I took care of this child since she was six months old and, oh, Brittany[] loves you and she wants to stay with you. They just wanted to get rid of this child because of her age and she had issues and no one else would take her....”
(Id.
at p. 46.) Despite Iarussi’s alleged reservations about adopting Brittany, however, she never expressed any concerns to the orphans’ court judge; on the contrary, she affirmed to the court that her adoption of Brittany was a knowing and voluntary decision and that no one had forced her or pressured her into the decision in any way.
B.
Post-Adaption Reports of Abuse
On April 29, 2003, some twenty months after Brittany’s adoption, a staff member from her middle school called the Pennsylvania Department of Public Welfare Child-Line to report concerns about bruising on Brittany’s body. The matter was classified as a General Protective Services (“GPS”) referral and forwarded to OCY for follow-up. (Pis.’ Ex. Vol. 5 [116-5] at p. 20.)
OCY staff member Pam Bruno screened the referral, documenting the following allegations:
Today when [Brittany] got on the bus the bus company staff noticed that the child had bruising on her neck. After seeing this the school counselor and principal and the nurse all talked to her, and [s]he has old bruises on her left upper arm and on her right upper arm, and on the right shoulder blade, and a small bruise on the right side of her face.
When they asked her how she got these bruises, the child reported that she didn’t know ... and the child added that nobody hit her. This was [Brittany’s] first day at school after being absent for the past 4 school days 4/22 thru [sic] 4/25. [The referral source] says that mom had put some make up on the child’s bruised face, and the child acknowledged this. Brittany is somewhat MR. ...
(Pis.’ Ex. Vol. 5 [116-5] at p. 13.)
The matter was assigned to OCY caseworker Jim Place for investigation. On April 30, 2003, Place spoke with the guidance counselor at Brittany’s school and learned that Brittany had originally told the counselor that she had fallen off her bike. The counselor further reported that Brittany’s mother was “irate” that the school had interviewed her about the bruises. (Pis.’ Ex. Vol. 5 [116-5] at p. 14.) Place then examined Brittany while she was at school and documented faded bruises on her right cheek, back, shoulder blades, and left arm, which he photographed. At that time, Brittany denied knowing how she had gotten the bruises and specifically denied receiving any corporal punishment. She reported to Place that she felt safe at home and that, when she gets in trouble, she gets sent to her room. She further claimed that she had missed the prior four days of school due to the flu. (Pis.’ Ex. Vol. 5 [116-5] at pp. 14,16.)
Place next interviewed Abby Iarussi while she was at school.
5
Abby likewise denied any corporal punishment being used at home and denied knowing how Brittany had gotten the bruises. She claimed that, when she gets in trouble at home, she has to go sit in her room. (Pis.’ Ex. Vol. 5 [116-5] at pp. 14,16.)
Later that day, Iarussi called Place to report that she did not want OCY to have
*379
any further contact with her children, as Abby had been upset by the visit to her school. Subsequent to this call, Place made an unannounced visit to Iarussi’s home. At that time, Iarussi was very upset about the OCY referral and was threatening to sue the school district. Iarussi disputed that there were bruises on Brittany’s body and claimed that she had examined Brittany the previous day after Brittany had gotten home from school and had found no bruises. When Place confronted her with the fact that he had personally seen the bruises and photographed them, Iarussi became very defensive and stated that she had never hit either of the girls. She maintained that Brittany had missed the four days of school because of a virus which had caused Brittany to experience vomiting and diarrhea. After asking Place to leave the premises, Iarussi contacted Defendant Edith Joseph, Intake Supervisor at OCY, and stated that the Agency was to have no further contact with her family. (Pis.’ Ex. Vol. 5 [116-6] at pp. 14, 16.)
On June 11, 2003, Place completed a risk assessment of the referral and closed the file. Although he felt that Abby and Brittany were “moderately” vulnerable to abuse or neglect, he assigned an overall risk analysis of “low,” which he explained as follows:
[Abby]
6
and Brittney [sic] were assessed in the moderate range for vulnerability. [Abby’s] rating was based on her age. Brittney [sic] was assessed in the moderate range because she is mildly mentally retarded. Their vulnerability placed them at increased risk for abuse and neglect.
Lisa was assessed in the moderate range for cooperation. This assessment is based on her refusal to acknowledge that Brittney [sic] had bruises, and her unwillingness to explore the possible origin of these bruises. She also denied any further access to her children to me to conduct follow up interviews.
The overall risk for this case is in the low range. The major concern is Lisa’s refusal to acknowledge Brittney’s [sic] injury and determine their cause. Both [Abby] and Brittney [sic] denied any corporal punishment in the home however. Lisa also professes that she has never hit the girls, and she adopted Britney [sic] to provide her with a safe stable environment that Brittney’s [sic] biological mother was unable to provide.
(Pis.’ Ex. Vol. 5 [116-5] at pp. 16-17.) Place’s risk assessment was reviewed and approved by his supervisor, Defendant Edith Joseph.
(Id.
at pp. 15,17.)
The same day that Place closed OCY’s file, he and Joseph co-signed a letter to Iarussi, stating that Place had completed his evaluation of the April 29 referral and had determined that it was not necessary for Iarussi’s family to receive ongoing services from OCY at that time. (Pis.’ Ex. Vol. 5 [116-5] at p. 11.) The letter indicated that, in the event new allegations were to be received by OCY, an intake specialist would be assigned to evaluate them, and it invited Iarussi to contact the agency if she felt that OCY could be of assistance in preventing the abuse or neglect of her children.
(Id.)
Approximately seven months later, on January 5, 2004, OCY caseworker Isabelle Wolf received an anonymous call from Cynthia Matecki, a teacher’s aide at McDowell Intermediate High School, where Brittany was attending a life skills class. According to Ms. Wolfs notes, this “referral source” stated that Brittany had a split lip, redness in her eyes, and cuts
*380
behind her ear and on her head. (Pis.’ Ex. Vol. 2 [116-2] at pp. 38-34) It was reported that Brittany had denied knowing how she got the injuries, but that she had been seen by the school nurse. It was also noted by Ms. Wolf that Brittany was in special classes, that she was adopted, and that there had been a prior intake in 2003.
(Id.;
Defs.’ Ex. 7 [79] at p. 2.) Upon screening this call, Ms. Wolf assigned a low risk to the referral, noting that the referral source had limited information and the child had been seen by the nurse and had made no allegations of abuse.
(Id.)
The following day, another OCY employee, Pam Bruno, telephoned Nancy Carlson, the school nurse at McDowell Intermediate. At that time, Carlson reported that Brittany had a problem biting her lips as well as an ongoing problem with bruises. The previous day (January 5), Brittany had been observed to have bruising on the bridge of her nose and red eyes. When asked about her injuries, Brittany claimed that she had been playing football and had gotten hit in the face. Carlson called Iarussi and was told the same story. Later that same day, it was brought to Carlson’s attention that Brittany also had a cut and bruising behind her ear. After discovering this new injury, Carlson had called Iarussi again and told her that she would have to take Brittany for medical treatment. (Pis.’ Ex. Vol. 2 [116-2] at p. 34.) Documentation in the record indicates that Iarussi took Brittany to the Hamot Hospital Emergency Room on January 5, where she was given a prescription for an antibiotic; the prescription was filled that same day.
(Id.
at pp. 23-24.) Bruno’s notes from the January 6 telephone call reflect that Iarussi had informed Carlson that Brittany was anemic and was taking iron to address this problem. The notes further reflect that Carlson had informed Iarussi that she wanted documentation of the ER visit and Iarussi had agreed to provide it. (Pis.’ Ex. Vol. 2 [116-2] at p. 34.)
After discussing this incident with her supervisor, Bruno advised Carlson that the Agency also wanted a copy of the documentation; this was faxed to OCY within a day or so thereafter. (Defs.’ Ex. 7 [79] at pp. 2-4.) Following this, the matter was “screened out” by the agency, meaning it was not accepted for further evaluation.
(Id.)
Although Wolfs notations on the screening form indicated that there had been a prior “intake” concerning Brittany in 2003, it does not appear that Bruno ever reviewed that referral prior to deciding to “screen out” the January 5, 2004 call. Bruno could not remember personally pulling the 2003 file, and there is no notation by her to suggest that she ever did.
(Id.
at 3.)
The following month, OCY received another referral concerning Brittany, this time from Karen Staab, the school district’s psychologist. Pam Bruno screened the call, which came in on February 26, 2004, and supplied the following narrative:
In early 1/04 we had received a call regarding some possible physical abuse by mom. In checking this out I spoke with Mrs. Carlson at school, and she indicated that she had been aware of the child’s injuries, and had also talked with mom about this, and at that time the child was saying that the injuries that she did have were not inflicted. I ended . up talking to mom, and we didn’t accept it for evaluation at that time. Mom was not happy about the referral that was made to us.
Several weeks later we recieved [sic] a call from this current [referral source] who I believe is a psychologist for the Millcreek school district. I guess there is a pattern with Brittany frequently coming into school with various bruises, cuts, scrapes to various body parts, and
*381
it’s a concern to the school, but the child has never come out and reported that mom did anything to her.
I’ve talked with Brittany’s teacher, Karen Halmi, and she indicated that she is suspicious of things at home. The child has seemed depressed all year, and at times shes [sic] so almost lethargic that Ms. Halmi has had to help her get up from her seat and get a drink of water. When the teachers or staff tell her shes [sic] a good kid, she starts to cry, and she always seems to want food. Ms. Halmi also mentioned that Brittany [always] has some sort of bruising somewhere on her.
What prompted [the referral source] to contact us again was that the school has scheduled something like 4 meetings for mom to come in and talk with them about problems that she is having with the child at home, but mom fails to show up for these meetings. Mom will say she wants guidance, and then not bother following up. The Achievement Center is involved maybe with TSS or mobile therapy, and Carrie Paternosh is the worker, and she has tried to reach mom, as mom said she wanted help, but mom hasn’t returned any of Carrie’s calls. Mom went to the MH BSU for help and now isn’t showing any interest.
It looks like mom adopted Brittany thru [sic] our agency, and we’ve had 1 prior intake on this family for P/A.
(Defs.’ Ex. 8 [80] at p. 8.) Bruno classified the referral as being low risk, and the matter was assigned to Advanced Intake Specialist Cynthia Valimont for further investigation.
(Id.
at p. 7.)
On March 4, 2004, Valimont telephoned McDowell Intermediate to confirm Brittany’s attendance there. A school official confirmed that Brittany did attend a life skills class but indicated that she was absent that day. (Defs.’ Ex. 23 [95] at ¶ 3, p. 3; Pis.’ Ex. Vol. 3 [116-3] at p. 2.)
The following day, which was Friday, March 5, 2004, Valimont called the school a second time in an attempt to make arrangements to see Brittany there. Valimont was informed that Brittany was again absent. (Defs.’ Ex. 23 [95] at ¶ 3, p. 3; .Pis.’ Ex. Vol. 3 [116-3] at p. 2.) Valimont then made an unannounced visit to Brittany’s home and was greeted by an adult woman who identified herself as “Linda” and stated that she was house-sitting for Iarussi. Linda advised Valimont that the family had gone to Pittsburgh to visit a relative who was ill and they were expected to return on Monday, March 8. Valimont left her card with Linda to be forwarded to Iarussi upon her return. (Defs.’ Ex. 23 [95] at ¶ 3, p. 3; Pis.’ Ex. Vol. 3 [116-3] at p. 2.)
Later that day, Valimont’s intake supervisor, Defendant Joseph, received a call from Iarussi, who reported that she had gotten a call from Linda about the home visit. Iarussi stated that she was calling from Pittsburgh where she and the children had gone to visit Abby’s father, who was reportedly dying of a liver disorder. Iarussi expressed surprise at the referral and stated that she would meet with someone as soon as she returned. (Defs.’ Ex. 23 [95] at ¶ 3, p. 3; Pis.’ Ex. Vol. 3 [116-3] at p. 2.)
On either March 6 or March 8,
7
Iarussi telephoned Valimont, who briefly explained the allegations. Iarussi denied hurting Brittany or Abby and stated that she loved her children and would never hurt them. She expressed disbelief over the allegations and claimed that the report may have been made out of vengeance. Iarussi advised Valimont that she had adopted Brit
*382
tany at age eleven, that Brittany has some health problems, including acid reflux disorder, and that she was receiving case management services with Sherry Lacey. Valimont and Iarussi scheduled a home visit for the following Tuesday. (Defs.’ Ex. 23 [95] at ¶3, p. 3; Pis.’ Ex. Vol. 3 [116-3] at p. 3.)
On or about March 9, 2004, Valimont conducted a visit to Iarussi’s home.
8
Certain aspects of this home visit are disputed by the parties. Defendant Valimont has submitted an affidavit which describes the details of this visit as follows:
The home environment was noted to be clean and neat with no apparent safety hazards. Brittany and Abby share a room with bunk beds and Ms. Iarussi has the other bedroom. The home had water and all utilities. There was plenty of food and the children ate Pop Tarts while I was there. Brittany did have red, crusty areas around her mouth that Ms. Iarussi indicated were from constant biting of the lips. Brittany confirmed that she does bite her lips and the resulting scabs out of habit. She actually was biting her lips while I was present and Ms. Iarussi told her to stop before she made them bleed. Brittany also reportedly has a problem with drooling. She does so excessively and needs to be reminded to swallow her saliva. Brittany agreed with this also. Ms. Iarussi stated that despite constant reminders, Brittany continues to drool and bite her lips. Ms. Iarussi further reported that Brittany seems very susceptible to illness and often gets colds. Brittany had a runny nose at the time of this home visit. Brittany was rubbing her nose and had rubbed it raw. Ms. Iarussi handed her a tissue, but she needed several reminders to use it. I spoke to Brittany who indicated that she is happy in the home with her mom, Lisa and sister, Abby. She indicated that she has not been hit by Lisa or anyone else and that she is not hurt in any way. When asked about punishment, she stated that she has to go to her room (time out). According to Ms. Iarussi, there would never be a need to hit or physically punish Brittany as she is very well behaved. Ms. Iarussi stated that Brittany rarely ever does anything wrong. Brittany was somewhat lethargic, but Ms. Iarussi stated that she has always
*383
been like that. She has known Brittany since she was an infant as she was an acquaintance of Brittany’s biological mother. Ms. Iarussi reported that Brittany often “stares off into space” and she did this several times while I was there. When I inquired about Brittany being tired all the time, Ms. Iarussi stated that she too has noticed this. Brittany goes to bed between 8:00 and 9:00 pm and wakes up at 5:30 am on weekdays to catch her school bus at 6:00 am. On weekends, she sleeps later. She reportedly sleeps well and sometimes naps on the weekends. Brittany agreed that she sleeps well. Regarding the lethargy and the bruising that has been reported, Ms. Iarussi stated that Brittany is anemic and is prescribed Feonsa iron supplement for this. She often bruises easily. She gets bruised from bumping into things or being grabbed by the arm when playing, as in tag or football. Brittany was also reported to be quite clumsy. She often trips and bumps into things. Brittany laughed about this and agreed. I noticed that Brittany appeared to have “pigeon toes” and walked with an unsteady gait. Brittany showed me her arms and back and had no current marks with the exception of a small scab on her elbow (pencil eraser size). She was unable to recall where she got it, but it appeared to be a small brush burn or rug burn. She stated that it did not even hurt. Ms. Iarussi and I had a lengthy discussion about allergies and the possibility that Brittany may have some. She was exhibiting several symptoms such as dark circles under the eyes, lethargy, and runny nose. Brittany was reportedly seen in the past by Dr. Fornelli, an Ear, Nose, and Throat specialist so Ms. Iarussi stated that she would contact him about allergy testing as well as about Brittany’s lips. Brittany and Abby do not have a current Primary Care Doctor. They were going to Children’s Health Care West until recently. Ms. Iarussi stated that a receptionist treated her rudely the last time they were there and she would not go back. The children have been seen in the Emergency room for any needed treatment since then. Ms. Iarussi stated that she was currently reviewing the list[ ] to locate a new family doctor. Ms. Iarussi also reported that Sherry Lacey, Brittany’s case manager, was helping her arrange a psychiatric consultation for Brittany to rule out depression and to address some concerns about statements from Brittany. Brittany had been saying that she wants to marry Ms. Iarussi and be intimate with her. She also had asked to be bathed and cuddled. It was unclear if Brittany understands what she is saying or if she simply enjoys the affection and attention that may have been lacking in her family of origin. Brittany was very affectionate with Ms. Iarussi while I was there. She patted her mother’s leg, leaned her head on Ms. Iarussi’s shoulder, and told her that she loves her. Regarding the school meetings, Ms. Iarussi admitted that she had not been consistent in meeting with them as she felt that they were rude and accusatory whenever they called her. She was reminded of the importance of working together with all Brittany’s provider’s [sic], as a team, to ensure that Brittany’s needs were being met. This includes educational, mental retardation, mental health, and medical providers. Lisa Iarussi agreed. Abby Iarussi, age 8, was also interviewed. She was able to identify good and bad touches (including hitting, kicking, etc). She denied ever getting any bad touches and denied being hit by anyone. She stated that she is well taken care of and loves her family (mom, Brittany, and dad). She stated that she has everything she needs (food, clothes,
*384
toys, a nice room). Ms. Iarussi then told me that Abby’s father is dying of a liver condition (Hepatitis) and is on a transplant list. Ms. Iarussi stated that he is a drug addict and therefore has poor judgment which led to the illness. She monitors Abby’s visitation with him. He lives in Pittsburgh. Abby also was affectionate with her mother while I was there. A neighbor, Sue Vanorsdale, stopped by while I was there. She sometimes babysits Brittany and Abby. She stated that she feels that Ms. Iarussi is a good parent and treats the girls well. She stated that the girls have never disclosed any abuse to her and she has not observed any. She was surprised that anyone would suspect that Ms. Iarussi was harming the children. She stated that she sees Brittany and Abby at least two or three times per week. Lisa Iarussi was very candid during the two hour home visit and she was distressed by the allegations. She stated that she would never harm Brittany and that she has been trying to address her problems. Both Brittany and Abby appeared happy and comfortable in the home with their mother. Brittany smiled and laughed several times. She did not appear to be in any distress physically or emotionally. We developed a plan for Ms. Iarussi to follow up with the allergy testing and psychiatric evaluation and call me with the details. She signed releases of information for Children’s Health Care West, Dr. Fornelli, and Sherry Lacey.
(Defs.’ Ex. 23 [95] at ¶ 3, pp. 3-6.)
Valimont’s account is contradicted in certain respects by Sue Vanorsdale,
9
a neighbor who resided immediately across the street from Iarussi in the trailer park where they both lived. At Iarussi’s request, Vanorsdale stopped by Iarussi’s mobile home and was present for part of Valimont’s visit.
10
Vanorsdale does not dispute that she was interviewed by Valimont and that she told Valimont (truthfully) that she had not witnessed any abuse on the part of Iarussi toward the children. (Defs.’ Ex. 36 [108] at p. 4.) In addition, Vanorsdale agrees it is “absolutely” possible that she might have told Valimont that Iarussi was a good parent who treated her children well, although she could not specifically remember saying this.
(Id.)
On the other hand, however, Vanorsdale does not recall that the children were present for this home visit, and her testimony at deposition was that she thought they were at school.
(Id.
at p. 8.) Additionally, in a statement given to a police officer on May 24, 2004, Vanorsdale described her encounter with the caseworker as follows:
Someone had called the school and Lisa thought it was her friend Cindy who did it so the case workers [sic] was over, Lisa called me and said come on over, I went over and the caseworker again like you asked have you ever seen Lisa abuse the children, I said no I have not ... and Lisa acted as though they were friends, they were speaking about relatives, I said I got to go. I don’t know what happened there....
... when the caseworker was over there, she had said that if she knew it was going to be this much trouble she would have, she’s going to give [Britta
*385
ny] back ... and she said if you think it’s so easy, you take her and I said okay. And uh, oh she also said that when [Brittany] was eighteen, when she turned eighteen she was going to put her in one of those I don’t know what they’re called, half way house ...
(Defs.’ Ex. 37 [109] at pp. 4-5.) At her deposition, Vanorsdale was questioned repeatedly as to whether Iarussi had made the foregoing remarks in the presence of Valimont. Ultimately, however, Vanorsdale was not sure whether Valimont had been present at the time these comments were made. (Defs.’ Ex. 36 [108] at pp. 9,' 12,15-16.)
On March 9, 2004, Valimont received a telephone message from Carlson that Brittany’s teacher at McDowell Intermediate would be calling with concerns about Brittany — specifically, that Brittany had returned to school with some changes in her behavior and appearance after having been out the previous week. (Pis.’ Ex. Vol. 3 [116-3] at pp. 4-5). Valimont subsequently received a message to contact Regina Kukolen, Brittany’s speech therapist. Ms. Kukolen saw Brittany every Monday and Tuesday for 30 minutes. When Valimont contacted her, Ms. Kukolen reported that Brittany had been very lethargic the previous day and had slept through both of her speech therapy sessions. She had dark circles under her eyes and her lips were split open. Valimont did not consider these reports to be new concerns.
(Id.
at p. 5; Defs.’ Ex. 23 [95] at ¶ 3, p. 7.)
The following day, March 10, 2004, Valimont received a call from Brittany’s teacher, Karen Halmi. What happened during the course of this telephone call is somewhat disputed. According to Valimont, Ms. Halmi reported that Brittany had had 30 absences from school, all of which had been excused, some of which were medical. Valimont also recalls Halmi reporting that Brittany had had an enormous appetite that day and was refusing to participate in pool class. According to Valimont, she and Halmi discussed the follow-up measures that were planned for Brittany regarding allergy testing and a psychiatric evaluation, and it was agreed that Halmi would report any further concerns. (Pis.’ Ex. Vol. 3 [116-3] at p. 6; Defs.’ Ex. 23 [95] at ¶ 3, p. 7.) According to Halmi, Valimont made comments in the course of this conversation to the effect of, “how would I feel if someone kept calling Child Services on me ... and did I know how hard it was to find placement for these kids,” which left Halmi feeling “threatened.” (Pis.’ Ex. Vol. 3 [116-3] at pp. 20-21.)
About one month later, on Monday, April 19, 2004, a member of Brittany’s school bus staff called the ChildLine to report that, when Brittany had gotten on the bus that morning, she had swollen lips with dark scabs. The caller noted that Brittany is frequently absent for a week and then when she gets back on the bus she has marks. Upon speaking with Brittany’s teacher and the school nurse, he had been told to call the ChildLine. The source was unsure if the school nurse had examined Brittany. The call was categorized as a General Protective Services call and referred to OCY. (Pis.’ Ex. Vol. 3 [116-3] at pp. 33-34.) Pam Bruno screened the referral, which was acknowledged by Defendant Joseph, and it was forwarded to Defendant Valimont.
(Id.
at p. 35.)
That same day, Valimont left a message for Iarussi inquiring about follow through on the planned allergy testing and psychiatric evaluation for Brittany. Valimont also requested a second home visit to discuss the reported concerns about new scabs around Brittany’s mouth. (Pis.’ Ex. Vol. 3 [116-3] at p. 6; Defs.’ Ex. 23 [95] at ¶3, p. 7.)
*386
Valimont contacted Iarussi later that same day and was informed that Dr. Fornelli had seen Brittany in late March and had ordered an upper and lower GI series to take place in May. According to Iarussi, Dr. Fornelli felt that Brittany’s acid reflux disorder may be contributing to her lip and mouth sores. He had reportedly examined the sores and instructed Iarussi to put neosporin on them until testing is done. Dr. Fornelli had also reportedly wanted the GI series performed before proceeding with the allergy testing. Iarussi stated to Valimont that Brittany had had problems with her mouth since her toddler years, and that she seemed to suffer periodic “outbreaks” which sometimes lasted for months at a time. Iarussi further stated that Brittany had been out of school for four days that week as a result of throwing up from acid reflux. Valimont inquired about the psychiatric evaluation for Brittany and was informed that it had not yet been scheduled by Sherry Lacey. Valimont then suggested that she and Iarussi meet with McDowell Intermediate personnel to discuss their concerns about Brittany as well as Iarussi’s concerns. Iarussi agreed to this and Valimont advised Iarussi that she would contact the school and get back to her with a date and time. (Pis.’ Ex. Vol. 3 [116-3] at p. 6; Defs.’ Ex 23 [95] at ¶ 3, pp. 7-8.)
Although the parties disagree somewhat as to the details of what occurred over the course of the ensuing week, it is undisputed that Valimont initially undertook steps to arrange a meeting between school officials and Iarussi regarding concerns about Brittany. OCY’s contact log suggests that Valimont initially spoke with a person named “Meagan” in student services on Thursday, April 22, 2004 requesting, on behalf of herself and Iarussi, a meeting with Brittany’s teacher and guidance counselor for the purpose of discussing Brittany. (Pis.’ Ex. Vol. 3 [116-3] at p. 6; Defs.’ Ex. 23 [95] at ¶ 3, p. 8.) It appears Valimont received a message the following day from Brittany’s teacher, Karen Halmi, indicating that the school personnel could meet on April 28 at 8:00 a.m. and requesting that Valimont call back to confirm the tentative date and time. (Pis.’ Ex. Vol. 3 [116-3] at p. 7; Defs.’ Ex. 23 [95] at ¶ 3, p. 8.) Halmi contends that she indicated in a message to Valimont that she wanted “the people on [her] team” there as well. (Pis.’ Ex. Vol. 3 [116-3] at p. 25, 27.)
Valimont then contacted Iarussi on Sunday, April 25, 2004 to advise her about the meeting planned for that Wednesday, April 28, at which time Valimont was informed by Iarussi that Iarussi had already met with school personnel, on her own, the previous Wednesday, April 21.
11
(Pis.’ Ex. Vol. 3 [116-3] at p. 8; Defs.’ Ex. 23 [95] at ¶ 3, p. 8.) OCY’s contact log reflects that Valimont had received a message on April 20, 2004 to contact Iarussi, but there was no indication in the message that Iarussi was planning to meet with school officials on her own. (Pis.’ Ex. Vol. 3 [116-3] at p. 6; Defs.’ Ex. 23 [95] at ¶ 3, p. 8.) According to Valimont, Iarussi indicated during this April 25 telephone call that she had met with the school’s principal (Tom
*387
McKalevich), Brittany’s teacher (Karen Halmi), the school nurse (Nancy Carlson), a school psychologist, and an educational services representative, and that they were planning to reevaluate Brittany’s educational needs and IQ, which was last thought to be in the 50’s or 60’s. Iarussi further advised Valimont that she (Iarussi) had explained all of Brittany’s current conditions and problems to the school personnel, and it was agreed that the principal would contact Iarussi with any further concerns. (Pis.’ Ex. Vol. 3 [116-3] at p. 8; Defs.’ Ex. 23 [95] at ¶ 3, p. 8.)
During the course of this April 25 conversation, Iarussi further informed Valimont that Brittany had fallen over the handlebars of her bike the previous evening (April 24) and had required stitches to her lip. According to Valimont, Iarussi claimed that she and her friend, Linda Fisher, had tried to treat the bleeding at home with ice and compresses but had eventually taken Brittany to St. Vincent Emergency Room when they could not stop the bleeding. Iarussi identified Dr. Anderson as the treating physician. In discussing this incident, Valimont inquired about “Linda,” whom Iarussi had sometimes referred to as a “roommate” and sometimes as a “friend.” Iarussi stated that Linda was a close friend who often stayed at the home but maintained her own residence across the street and that she was very involved with the children, as she had none of her own. Valimont claims that, during this conversation, she suggested that Iarussi call Brittany’s school to apprise them of the bike accident so they would be aware of this injury, and Iarussi agreed. (Pis.’ Ex. Vol. 3 [116-3] at p. 8; Defs.’ Ex. 23 [95] at ¶ 3, p. 8.)
On the following day, Monday, April 26, Valimont received a message from McDowell Intermediate indicating that the meeting for Brittany was scheduled for Wednesday, April 28 at 8:00 am in the guidance office. Valimont’s log indicates she attempted to return the call and got no answer. (Pis.’ Ex. Vol. 3 [116-3] at p. 8; Defs.’ Ex. 23 [95] at ¶ 3, p. 8.)
Valimont telephoned Halmi the next day, April 27, 2004, concerning the meeting which had originally been set for April 28. The timing and specifics of this conversation are somewhat disputed. According to Valimont, Halmi indicated during this contact that school officials had already met with Iarussi, they were satisfied with the results of the meeting, they had developed a plan for the principal to contact Iarussi with further concerns, and another meeting with Valimont present was therefore unnecessary. Valimont claims she concurred with Halmi’s analysis that no additional meeting was necessary, and that no objection was ever raised by school personnel regarding the cancellation of the April 28 meeting. (Defs.’ Ex. 23 [95] at ¶ 3, p. 9.) According to Halmi, Valimont contacted her at some point between April 22 and April 28 and unilaterally decided to cancel the April 28 meeting, to which Hal-mi replied “okay” merely as a way of “acknowledging th[e] fact that she was canceling.” (Pis.’ Ex. Vol. 3 [116-3] at pp. 25-26.)
In addition to the reports and referrals outlined above, numerous calls were allegedly made to OCY by Cynthia Matecki, a special education assistant at McDowell Intermediate High School. In her capacity as a teacher’s aide, Matecki worked with Brittany about four hours each day. (Pis.’ Ex. Vol. 4 [116-4] at p. 24 ¶¶ 2-3.)
Matecki witnessed a pattern of Brittany being bruised often, having make-up applied over the bruising, making excuses about the bruising, and missing school often. Matecki observed that this bruising got worse, and Brittany became more withdrawn, toward the end of her life. (Pis.’ Ex. Vol. 4 [116-4] at pp. 24-25, ¶¶ 7,
*388
9,14,16-17;
id.
at p. 26, ¶ 29.) In addition, she was always hungry at school and, toward the end, she only wanted to sleep; Matecki felt that Brittany was “giving up” due to the severity of the beatings.”
(Id.
at p. 26, ¶¶ 24, 28.)
Matecki felt that there were “many red flags” indicating that Brittany was being abused. (Pis.’ Ex. Vol. 4 [116-4] at p. 26, ¶ 32.) According to Matecki, there were so many incidents with Brittany during April-May of 2004 that Matecki wound up making repeated calls to OCY to report that “the beatings were getting worse and that [Brittany] had a cauliflower ear all year.”
(Id.
at p. 25, ¶ 19.) In fact, Matecki contends that she called OCY on five separate occasions between January of 2004 and late April/early May of 2004.
(Id.
at p. 25, ¶ 18.) During these calls, Matecki “directly stated’ her opinion “that Lisa Iarussi was abusing Brittany Legler.”
(Id.
at p. 26, ¶ 23.) She was told by OCY personnel that “it was an ongoing investigation” and that they could not give her any information.
(Id.
at p. 26, ¶ 21.) By the third or fourth time she called OCY, Matecki became irritated that the agency, in her opinion, was “apparently doing nothing.”
(Id.
at p. 26, ¶ 25.) By the fifth call, she claims, “OCY personnel sounded as if they were agitated at me.”
(Id.
at ¶ 26.) Matecki avers that she “said to Erie County OCY when are you going to take her out of the house which irritated the Erie County OCY person to whom I was reporting my concerns about Brittany’s physical welfare.”
(Id.
at ¶ 27.) Despite her many calls to OCY expressing her concerns about Brittany’s well-being and her suspicion that Brittany was being abused, no one from OCY ever called her, interviewed her, or came to the school to meet with her.
(Id.
at p. 26-27, ¶33.)
Instead, on April 27, 2004, Valimont met with her intake supervisor, Defendant Joseph, for about ten minutes to review the case. (Defs.’ Ex. 22 [94] at p. 2.) Despite the fact that state regulations required a written risk assessment to be completed, this was not done. Instead, Valimont claims, she and Joseph verbally discussed the risk assessment factors and decided to close the case.
(Id.)
According to Valimont, she recommended closure of the case because physical abuse had been denied by Brittany and Iarussi, Brittany’ health problems were being addressed, Iarussi had met with school personnel to address their concerns and Brittany’s educational needs, Brittany’s basic needs were being met, and there were no current, apparent child welfare issues outstanding. (Defs.’ Ex. 23 [95] at ¶ 3, p. 9.) Plaintiffs maintain that school personnel were never informed that OCY’s file was being closed.
Twelve days later, on May 9, 2004, Brittany died after an abusive episode in which Iarussi and her partner Linda Fisher forced Brittany lie between two bed mattresses and then proceeded to jump on Brittany while taunting her. (Pis.’ Ex. Vol. 3 [116-3] at ¶¶ 20-21, pp. 37-38.) According to the affidavit submitted by Abby Iarussi,
12
this final tragedy was merely the culmination of a litany of abuse perpetrated by Lisa Iarussi upon Brittany. In the home of her adoptive mother, Brittany was humiliated, forced to do most of the household chores, denied food, denied companionship, beaten, and, at times, physically tied to the bed while the rest of the family went out to eat.
(Id.
at pp. 36-37, ¶¶ 7-8, 11-19.)
The formal cause of Brittany’s death was found to be “Cardiac Arrhythmia due to Myocardial Ischemia due to Hypoplasia of [the] Right Coronary Artery with stress
*389
from physical assault and involuntary physical exertion.” (Pis.’ Ex. Vol. 5 [116— 5] at p. 2.) Incredibly, an autopsy subsequently revealed some 212 blunt-force trauma injuries to Brittany’s head, face, neck, trunk, and extremities in the form of abrasions, contusions or lacerations, as well as a cauliflower ear, a healed rib fracture, and a soft tissue hemorrhage to the back.
(Id.
at p. 3.) Iarussi eventually pleaded no contest to criminal charges stemming from Brittany’s death and is now serving a state sentence of 7 to 14 years of imprisonment.
Despite having received releases on or around March 9, 2004 to obtain Brittany’s medical records from Dr. Fornelli and Children’s Healthcare West, Valimont did not send out the authorizations to these providers until May 13, 2004. (Pis.’ Ex. Vol. 4 [116-4] at pp. 33, 41-42.) That same day, which was four days after Brittany’s death and sixteen days after OCY had closed its file, Valimont completed a written “Interim Risk Assessment” at the direction of Robin Adams, then OCY’s Director of Policy and Evaluation. (Pis.’ Ex. Vol. 4 [116-4] at p. 43; Defs.’ Ex. 1 [73] at pp. 2-3.) Valimont’s Risk Assessment, which was approved by Defendant Joseph, rated Brittany’s overall risk as “low.” (Pis.’ Ex. Vol. 4 [116-4] at pp. 43^4.) According to Valimont, the low risk assignment was based on preliminary reports from law enforcement indicating that Iarussi, Linda Fisher, and Abby had all claimed that Brittany had died as the result of an accidental fall in which Brittany had hit her head;
13
the report from the Coroner’s office, which suggested physical abuse as a contributing cause of death, had not yet been received by OCY.
(Id.
at p. 43.)
In 2005, the Pennsylvania Department of Public Welfare conducted an investigation into OCY’s handling of Brittany’s case. The Department found that OCY had violated at least four different provisions of the Pennsylvania Administrative Code, as follows:
* 3490.232(d)(l)(2)(3) In the case under review a Risk Assessment was not completed, according to the agency record, until May 13, 2004. This was 16 days after the worker and supervisor had made a decision to close the ease at intake on April 27, 2004. These regulations require that the county agency shall use a State-approved risk assessment process to:
1.Aid in its assessment of whether to accept the family for services.
2. Insure that its assessment is comprehensive.
3. Help determine the need for general protective services.
* 3490.232(e) In the case under review the agency failed to complete its assessment to determine whether or not the child and family should be accepted for GPS within the required sixty day time framework required by this section of the regulations.
* 3490.232(g) In the ease under review the assigned worker did not confirm observations/assumptions made during the course of the agencies [sic] evaluation of the case by making the appropriate collateral
*390
contacts. This section of the regulations specifies that ... “the agency shall also conduct interviews with those persons who are known to have or may be reasonably be [sic] expected to have information that would be helpful to the county agency in determining whether or not the child is [in] need of general protective services.” In this case, the assigned worker had no direct contact with several medical providers, the MR BSU, the MH BSU, as well as school staff who had direct knowledge of the child referred for services.
* Chapter 3130.21(b) The case under review did not contain a safety plan for the child referred for service from the point of referral to case closure. The record does not specify what factors or issues were assessed in determining that the children remained safe while residing in their home. The case file contents were not reflective of the mandates of OCYF Bulleting # 3490-00-02 Safety Assessment and Safety Planning.
(Pis.’ Ex. Vol. 3 [116-3] at pp. 30-32.)
C.
Procedural History
In 2006, Iarussi’s sister, Victoria Hayes, and her husband Charles, acting as the administrators of Brittany’s estate, commenced this lawsuit, naming as Defendants OCY, Gallagher, Vallone, Hughes, Valimont, Joseph, Debbie Leasure (an intake screening supervisor for OCY), Robin Adams (OCY’s Director of Policy and Evaluation) and Debra Liebel (Director of OCY). The complaint originally asserted federal claims under 42 U.S.C. § 1983 and state law claims under common law theories of negligence
per se
and gross negligence as well as the Pennsylvania Survival Act, 42 Pa.C.S.A. § 8302. In a memorandum opinion and order dated June 29, 2007, this Court dismissed the state law negligence claims and, in addition, dismissed the § 1983 claims in part.
14
See Hayes v. Erie County Office of Children and Youth,
497 F.Supp.2d 684 (W.D.Pa.2007).
Following extensive discovery, Defendants filed the instant motion for summary judgment. The issues have been briefed and argued and the Court has reviewed the rather extensive record in this case in its entirety. Accordingly, Defendants’ motion is ripe for disposition.
III. DISCUSSION
A.
Federal Claims
Plaintiffs’ federal claims in this case are brought under 42 U.S.C. § 1983 , which provides a cause of action to:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws ...
42 U.S.C. § 1983 . To prevail under 42 U.S.C. § 1983 , a plaintiff must prove that s/he suffered the deprivation of a constitutional or federal rights by a person acting under color of state law.
Mark v. Bor
*391
ough of Hatboro,
51 F.3d 1137, 1141 (3d Cir.1995).
As it is undisputed that all the named Defendants are state actors for purposes of § 1983, the focus here is on whether the evidence supports the existence of a constitutional tort. In Count I of the Complaint, Plaintiffs allege that all the named Defendants violated Brittany’s right to substantive due process under the Fourteenth Amendment to the U.S. Constitution. Count II of the Complaint asserts a § 1983 claim against Defendants OCY, Liebel, Adams, Leasure, and the “other individual Defendant supervisors” premised on their alleged failure to properly train and supervise the other individual Defendants in their handling of Brittany’s ease. Count V of the Complaint asserts a § 1983 claim against OCY and Defendant Liebel based on a theory of municipal liability. We will address each claim in turn.
1. Count I: Substantive Due Process Violation
The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV. Thus, individuals have a constitutional liberty interest in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment.
Phillips v. County of Allegheny,
515 F.3d 224, 235 (3d Cir.2008).
Under
DeShaney v. Winnebago County Department of Social Services,
489 U.S. 189 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989), however, the Due Process Clause does not generally impose upon the state an affirmative obligation to protect its citizens from harm inflicted by private individuals. An exception to this general rule exists, nonetheless, under what is known as the “state-created danger” theory.
Phillips,
515 F.3d at 235 . This theory holds that government actors can be liable under § 1983 for private harm which befalls a citizen where “state authority is affirmatively employed in a manner that injures [the] citizen or renders him ‘more vulnerable to injury from another source than he ... would have been in the absence of state intervention.’ ”
Bright v. Westmoreland County,
443 F.3d_276, 281 (3d Cir.2006)
(quoting Schieber v. City of Philadelphia,
320 F.3d 409, 416 (3d Cir.2003)). In
Bowers v. De Vito,
686 F.2d 616, 618 (7th Cir.1982), a case which predates
DeShaney ,
the Seventh Circuit Court of Appeals famously summarized the theory behind state-created danger liability by noting that, “[i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.” 686 F.2d at 618 .
To establish a claim under the “state-created danger” theory in this circuit, the following elements must be shown to exist:
(1) the harm ultimately caused to the victim was foreseeable and fairly direct;
(2) the state actor acted with a degree of culpability that shocks the conscience;
(3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and
(4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable
*392
to danger than had the state not acted at all.
Bright,
443 F.3d at 281.
The first element — that the harm ultimately caused was foreseeable and fairly direct — necessarily entails allegations of “an awareness on the part of the state actors that rises to the level of actual knowledge or an awareness of risk that is sufficiently concrete to put the actors on notice of the harm.”
Phillips,
515 F.3d at 238 .
See also D.N. ex rel. Nelson v. Snyder,
608 F.Supp.2d 615, 625 (M.D.Pa.2009). In addition to the foreseeability component of the analysis, we must assess whether the harm “is a ‘fairly direct’ result of the defendant’s acts.”
Phillips,
515 F.3d at 239 . “This inquiry essentially asks whether the alleged misconduct and the harm caused were “too attenuated” to justifiably hold the defendant liable.”
D.N. ex rel. Nelson v. Snyder,
608 F.Supp.2d at 625 (citing
Phillips, supra,
at 238 ).
With respect to the second element of the “state-created danger analysis,”
to wit,
that the state actor act with a degree of culpability that “shocks the conscience,” the “exact degree of wrongfulness necessary to reach the ‘conscience-shocking level depends upon the circumstances of a particular case.’ ”
Miller v. City of Philadelphia,
174 F.3d 368, 375 (3d Cir.1999). Where a state actor has the time to deliberate about his actions and is not under pressure to make hurried judgments, the state actor’s conduct will be sufficiently “conscience shocking” if it displays a deliberate indifference toward a substantial risk of serious harm to the plaintiff.
See Navolio v. Lawrence County,
406 Fed.Appx. 619, 624 (3d Cir.2011) (“In a case where state actors have the time to make unhurried judgments, the level of culpability required to shock the conscience is deliberate indifference.”)
(quoting Sanford v. Stiles,
456 F.3d 298, 309 (3d Cir.2006)).
The third element requires that the plaintiff show “a relationship between the state and the plaintiff’ such that the plaintiff was “a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions.”
Smith, supra,
at *6
(quoting Bright,
443 F.3d at 281). This requirement “contemplates some contact such that the plaintiff was a foreseeable victim of the defendant’s acts in a tort sense.”
Id. (quoting Kneipp v. Tedder,
95 F.3d 1199 , 1209 n. 22 (3d Cir.1996)).
The fourth element of the state-created danger analysis can be broken down into three necessary conditions,
to wit:
(i) a state actor exercised his or her authority; (ii) the state actor took an affirmative action; and (iii) this affirmative act created a danger to the citizen or rendered the citizen more vulnerable to danger than if the state had not acted at all.
Ye v. United States,
484 F.3d 634, 639 (3d Cir.2007);
Bright, supra,
443 F.3d at 281-82.
The failure by a plaintiff to establish any of the foregoing elements will preclude a viable state-created danger claim.
See Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 914 (3d Cir.1997) (for purposes of state-created danger claim, court did not need to decide whether the decedent and others who were present in school where decedent was fatally shot were a sufficiently discrete group of persons who could have been foreseeable victims of an armed and dangerous intruder, since plaintiff could not satisfy the remaining three elements of his claim);
Smith v. School Dist. of Philadelphia,
Civil Action No. 07-2080, 2009 WL 667455 at *3 (E.D.Pa. Mar. 10, 2009) (“A plaintiffs failure to satisfy any of the four elements defeats his state-created danger claim.”) (citing
Morse, supra
). To avoid entry of a summary judgment in this case, therefore, Plaintiffs
*393
must present evidence which shows there is a genuine issue of material fact as to each element of their state-created danger claim.
See
Fed.R.Civ.P. 56(c);
Smith, supra,
at *3.
In addition, each Defendant’s potential liability must be predicated on the basis of his or her own personal knowledge and actions relative to Brittany’s case, because liability under § 1983 cannot be premised on theories of vicarious liability or
respondeat superior. See Ashcroft v. Iqbal,
556 U.S. 662 , 129 S.Ct. 1937, 1948 , 173 L.Ed.2d 868 (2009) (noting that, because vicarious liability is inapplicable in a § 1983 suit, “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution”) (assessing a motion to dismiss under Fed.R.Civ.P. 12(b)). Accordingly, this Court will consider the sufficiency (or insufficiency) of the Plaintiffs’ evidence as it pertains to the respective conduct of each named Defendant. Broadly speaking, the relevant conduct can be broken down into two discreet time periods involving two discreet sets of actors— a distinction which I will refer to as “preadoption conduct” and “post-adoption conduct.”
a)
Pre-adoption Conduct
As the Court’s discussion of background facts demonstrates, Defendants Gallagher, Yallone, and Hughes collectively played a significant role in the events that led to Brittany’s placeme

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2180863. Public record. Not legal advice.