County Not Liable to Outraged Foster Family

     ERIE, Pa. (CN) - A federal judge awarded summary judgment to a child-services department facing claims by a foster family that took in a child described as a future "Jeffrey Dahmer."
     The minor child, J.O., was placed in the care of Erie County after both sets of his parents and other family members felt they could not deal with "his special emotional issues."
     While in the care of family members, who passed him around for two years, J.O. acted out sexually with his half-sister and a younger relative in North Carolina. The boy suffered from bedwetting and involuntary defecation, showed no remorse or conscience, was self-abusive, and "threatened to blow things up, shoot people and stab people."
     His stepmother claimed that J.O. did not fit into their marriage and family plans. A caseworker noted that the boy's biological father called J.O. a future "Jeffrey Dahmer."
     As J.O. bounced around the Erie County foster system, a psychiatrist determined that the boy was not a sexual perpetrator and behaved "more like a victim of poor family dynamics."
     After J.O. made a "suicidal gesture" in August 1998, he spent nine days in a mental health facility.
     From that point forward, J.O was moved into various residential treatment centers, mental health facilities, shelters and foster homes.
     The following year, J.O. began acting sexually inappropriate, masturbating, making sexually charged comments and being physically aggressive.
     He was eventually moved to Harborcreek Youth Services Residential Treatment Facility, a facility for children with sexual offender, behavioral and mental health issues.
     Then in 2000, the Erie County Office of Children & Youth identified Paul and Bonnie as a potential host family for J.O., even though "they indicated they did not want a foster child that was a fire-setter or 'severe sexual offender.'"
     At that time, the Bryans had fostered up to 45 children and had just adopted K.B., a child who had been living with them since 1998.
     The Bryans say the department never told them about J.O.'s treatment plan, which would include sexual counseling services. Instead caseworkers described J.O. as "oppositional defiant, suffered from ADHD, anxiety and mood disorders."
     Three caseworkers whom the Bryans later sued - Renie Skalko, Cindy Lewis and Cindy Baxter - all maintain that the Bryans knew about with J.O.'s "background information," including his "behavioral issues."
     After visiting the Bryans' home on weekends for over a month, Harborcreek officials caught J.O. with underwear catalogues and a pair of Bonnie's underwear.
     Despite this "red flag," the county discharged J.O. from sexual counseling and let him move in with the Bryans in March 2001.
     In addition to the 9-year-old K.B., the Bryans had a 16-year-old son and two other foster children, who were 3 and 4 years old at the time.
     The caseworkers claim to have informed the Bryans that they should keep J.O. in a separate bedroom from other family members, with a door alarm, but that the Bryans refused.
     Claiming that they never knew J.O. needed to be isolated from other children, the Bryans said they let J.O and K.B. share a bedroom.
     By August, K.B. told the Bryans that the 14-year-old J.O. had "grabbed his testicles."
     When the Bryans reported the behavior, the official who took the report said "there's a history of this." J.O was removed from the Bryan home that day.
     K.B. later admitted in therapy that J.O had raped him orally and anally 15 to 20 times. "On one occasion, he reported that J.O. had pulled out a knife and told him 'if you tell anyone, I'm going to kill you or the family."
     The Bryans originally filed suit in 2003, but a federal judge dismissed the case in 2006.
     On orders from the 3rd Circuit, the Bryans filed an amended complaint. U.S. District Judge Sean McLaughlin dismissed some claims on summary judgment last week.
     "We conclude that the plaintiffs have failed to raise a triable issue of fact as to OCY's liability," McLaughlin wrote. "Clearly, there was no formal policy to place dangerous children in foster homes without adequate warning to foster parents. Nor is there evidence on this record of a de facto custom or practice relative to the same. Merritt's uncontradicted testimony was that there was no requirement that the risk assessment or safety plan be reduced to a formal written document. However, he contended, and the other individual defendants agreed, that all information pertinent thereto would have been shared with the Bryans, either orally or in writing. While the alleged failure on the part of the individual defendants to do so might be pertinent to an analysis of their liability, it is irrelevant. ... Therefore, summary judgment will be granted in favor of the municipal defendant OCY."
     The judge also granted summary judgment to the department on K.B.'s claim of f intentional infliction of emotional distress. "While the acts of the individual defendants could reasonably be viewed as deliberately indifferent, the record could not support a finding that they placed J.O. in the Bryan home with the intent that he assault K.B. and the expectation that K.B. suffer severe emotional distress as a result," McLaughlin wrote.
     Skalko, Baxter and Lewis, however, do not have immunity from K.B.'s substantive due process claim.
     "The record evidence supports plaintiff's claim that defendants Skalko, Baxter and Lewis had an awareness of a risk that was sufficiently concrete to put them on notice of J.O.'s potential for sexual assault and rape," McLaughlin wrote. "These defendants knew that the Bryans did not want a sexual offender. They were also aware that there were younger children in Bryan house. They also were aware that J.O. had a long history of physically aggressive behavior and sexually acting out. They admit that they believe that door alarms and separate bedrooms were necessary."
     "In sum, we find on this record that a reasonable jury could conclude that the conduct of the defendants Skalko, Baxter and Lewis was deliberately indifferent to a patently obvious risk of harm to K.B."