David L. Schwalm and Crystal H. Clark (Harrisburg) successfully defended five employees at York County Children & Youth Services from allegations that they were deliberately indifferent to the safety of a child in their care. 

 

Amy S. Conn and Steven Mayo, the mother and father of two-year-old TJ Armentrout, alleged that CYS employees did not adequately evaluate the home of foster mother Millie Bull, with whom TJ was placed by CYS.  Further, they allege that the CYS employees were inadequately trained in evaluating the safety of foster homes. The parents alleged that as a result of these inadequacies, TJ drowned in an in-ground pool at the home of Bull in violation of his constitutional rights to substantive due process.

 

The case, originally filed in the Middle District of Pennsylvania, was resolved in favor of all CYS defendants by way of Motion for Summary Judgment. At the summary judgment level, the CYS employees argued first that two of the five employees were not in any way involved in the evaluation, training, or selection of the Bull home as a foster home either generally or specifically as it related to TJ. As to those employees who were involved in the evaluation, training and selection of the Bull home as a licensed foster home appropriate for TJ, they argued that their conduct in this regard did not “shock the conscience” as required to state a claim for deliberate indifference.

 

The undisputed evidence of record showed that the pool in which TJ drowned was compliant with all local ordinances relating to in-ground pools. As the state imposed no greater restrictions on foster homes with pools, no reason existed for CYS to exclude the Bull home merely because of the pool. While there had been prior concerns regarding the cleanliness of the home, that issue was immediately remedied by Bull when brought to her attention. Similarly, although there was evidence that Bull had arthritis, there was no evidence that this condition impaired her ability to care for her foster children.  Finally, although Bull was caring for the maximum number of foster children allowable under the law in addition to caring for her grandchildren during the day, the evidence showed that Bull had assistance and an appropriate license to do so. 

 

All of these issues were considered as part of routine inspections and evaluation by CYS both prior to and during TJ’s placement, and no ongoing safety concerns were ever found as part of these evaluations. In any event, there was no evidence presented that these facts actually contributed to or caused the death of TJ.  At best, the decision to place TJ with Bull under these circumstances amounted to mere negligence, which is insufficient to establish a constitutional deprivation no matter how tragic the circumstances.  As noted by the District Court, negligence of itself is not a basis for holding a public agency liable under the due process clause to an injured person; there must be ill-conceived, malicious or deliberately indifferent conduct. These legal arguments resulted in Middle District Judge Christopher Conner’s grant of summary judgment to the CYS employees.

 

On appeal, the Plaintiffs asserted that the Court erred in finding the conduct in question “merely negligent” as opposed to “recklessly indifferent,” arguing that this was a matter for the jury to decide when viewed in the light most favorable to the Plaintiff at the summary judgment stage. As to the substance of the claims, the Third Circuit affirmed the District Court’s finding that Plaintiffs’ claims involved mere negligence and not deliberate indifference. 

 

While the Court noted that there was conflicting testimony regarding the authority of caseworkers to approve a foster placement, the presence or absence of safety features on the doors in Bull’s home, and how many children could be present in Bull’s home, these factual discrepancies implicated standards of negligence, not constitutional due process violations.  As the Court stated, “There is no evidence in this case that the (CYS employees) were aware, or should have been aware, that their training of employees, certification of Bull as a foster parent, methods of inspecting the home and licensing Bull, or establishment of YCCYS policies would be inadequate to protect TJ’s safety.” 

 

For these reasons, the Court affirmed the order granting summary judgment by the District Court.