CYS policy ruled too broad

"Because of Fayette County, [the children] lost a year with him that they will never get back."

A 31-page court opinion, in which a federal judge found in favor of a man who had been separated from his children for nearly a year, came about two weeks too late.

The plaintiff, who sued Fayette County Children and Youth Services in June 2008 for violating his due process rights, died Nov. 18 after being injured in a car crash earlier in the month.

He was 31.

"It just makes what was already a tragic situation heartbreaking," said Sara Rose, an attorney with the American Civil Liberties Union of Pennsylvania who represented the man in his lawsuit.

Identified in the complaint only as John Doe to protect his three children, the man had been denied even supervised visitation for nearly 11 months between August 2007 and June 2008, after he was deemed a "perpetrator of sexual abuse" for having a consensual relationship with a 16-year-old girl.

He was never criminally charged.

In an opinion issued Monday, Senior U.S. District Judge Donetta W. Ambrose found that CYS violated Mr. Doe's "fundamental parental rights," and that the policy used to remove his children was "conscience shocking."

Ms. Rose was thrilled by the opinion, but said that it being issued on the day of Mr. Doe's funeral was "very hard."

"The situation is all the more tragic because of John Doe's untimely death," Ms. Rose said. "Because of Fayette County, [the children] lost a year with him that they will never get back."

The CYS case involving Mr. Doe began in September 2006, when the agency got a tip about his relationship with the 16-year-old girl.

During the pendency of the investigation, the caseworker involved required that the children live with Mr. Doe's parents. He had been the primary caregiver after he and his wife separated in 2005. But under the plan in place, Mr. Doe was allowed supervised visitation with his children.

He saw them every day.

That situation worked for 11 months. However, when a new caseworker took over, she showed up at Mr. Doe's parents' home about 10 p.m. on Aug. 1, 2007, threatening to place the children in foster care unless Mr. Doe agreed to give up all contact with the children, who at the time were 3, 4 and 6.

Fearing his children would be placed with strangers, he agreed to the plan and entered a sex offender treatment program CYS required for him to even have a chance of being reunited.

There had never been any allegations he abused his children.

Because of his difficulty accepting the separation, Mr. Doe sought counseling for depression and suicidal thoughts. He admitted himself three separate times in late 2007 to an area hospital for psychiatric treatment.

In June 2008, Mr. Doe filed the lawsuit against CYS and several caseworkers, alleging that they violated his due process rights for failing to provide him a hearing -- either before or after his children were taken; for violating his right to have care and custody of his children based on a flawed policy in place at CYS; and for violating his First Amendment rights to associate with his children.

Less than a week after the lawsuit was filed, CYS allowed Mr. Doe to begin having supervised visitation. By Aug. 1, 2008, he was permitted to have unlimited, unsupervised contact with the children.

At the time of his death, the children were living with Mr. Doe, and his girlfriend, now 20 years old, in Brownsville. They also have two children, ages 2 and 8 months.

On Monday, Judge Ambrose issued her opinion, granting summary judgment in Mr. Doe's favor on most of the issues before her.

"Here, while there was an allegation that plaintiff had sexual contact with a minor that was not his child, defendants had no evidence that plaintiff had abused or mistreated his children," she wrote.

The judge went on to say that CYS' policy that called for automatic termination of contact, "is too broad, unreasonable, ignores alternatives, is inflexible and completely devoid of assessments on a case-by-case basis. It is an arbitrary abuse of power."

The decision allows the case to proceed to trial for a jury to determine how much money in damages Mr. Doe is entitled to based on the violations. Because of his death, Ms. Rose said, the case can proceed on behalf of his estate.

"This situation was incredibly difficult for the whole family, and they're going to be dealing with the ramifications of Fayette County's actions for the rest of their lives," Ms. Rose said. "It's really important to make sure this doesn't happen again. He got his kids back, but he wanted to keep fighting this case to make sure this never happened to anyone else."

Paula Reed Ward: pward@post-gazette.com or 412-263-2620.

First published on November 26, 2010 at 12:00 am