Full opinion text
MEMORANDUM OPINION LEE, District Judge. Before the Court are: (i) South Buffalo Township (“Township”) and Officer Scott Yockey’s Motion for Summary Judgment (Document No. 35); and (ii) Motion for Summary Judgment (Document No. 38) filed on behalf of Armstrong County (“County”), Armstrong County Children and Youth Services (“CYS”), and Jo Ellen Bowman. After careful consideration of these motions, the memoranda of law in support and in opposition thereto, the supporting materials offered by the parties, and the entire record in this case, the Court will grant summary judgment in favor of all defendants on plaintiffs’ substantive due process claims brought pursuant to 42 U.S.C. § 1983 and their pendent state claims, but will deny the motions with regard to plaintiffs’ section 1988 procedural due process claims. Background The historical facts underlying this lawsuit are not in dispute, for the most part, although the competing inferences the parties spin from those facts are wildly divergent. Putting aside the contradictory spins and inferences, for now, the mostly undisputed material facts material are as follows. During the first week of November 1998, plaintiff Kelly J. Patterson and her daughter, Abby Ferguson, approaching 15 years of age, were having an ongoing disagreement about, among other things, whether Abby could go and live with her father, Jeffrey Ferguson. Mrs. Patterson had primary custody, and pursuant to family court order, Mr. Ferguson had alternating weekends, and substantial shared custody in the summertime. On the morning of November 6, 1998, a Friday, the escalating week-long squabble culminated in a physical altercation in the driveway of their home. After the altercation, Mrs. Patterson drove Abby to Free-port Area High School. Two of Abby’s friends noticed that she was very upset, crying, and had some minor scrapes and bruises on her wrists, arms, knees and a small bump on her head. Abby told them she was upset because her mother and she had a fight. Her friends persuaded Abby to tell the guidance counselor what had happened. Doug Stanko, the counselor, spoke with Abby who told him about the fight. Mr. Stanko asked Abby to write out a statement explaining what had happened. Abby handwrote the seven-page statement, the highlights of which are as follows. Abby described a series of escalating arguments she had with her mother over a variety of things, but mostly about her wanting to go and live with her father. Mrs. Patterson thought she was manipulating her parents. On one occasion, “she said she would punch me in the face and drag me to the car” if Abby wouldn’t ride to school with her voluntarily. Abby Ferguson deposition, Deposition Exhibit 1, at 4. The arguments continued for about a week. On Friday, November 6, 1998, Abby told her mother she was going to go to her father’s residence after school, and tempers flared. The argument escalated, mother and daughter shouting at each other, including Abby Ferguson screaming, “Screw you.” Mrs. Patterson insisted Abby would not ride the bus to school, and she was going to drive her instead. Arguing throughout the morning, eventually they headed toward the car. By that time I’d gotten to the car & was on the steppey thing, & she came up behind me & pulled me out by my ham & faced my head down. She told me never to swear at her again. I told her to stop & let go of me & she said not ‘til I said I wouldn’t. We got on the ground & she clawed me & we fought until I got on top & I said, “You don’t hit me.” She got on top again, & she got my hooded sweatshirt over my face & was pulling it. I told her I couldn’t breathe, & she said good. I got out of her grip, and I got at last on all fours. She clawed at my bracelets & my arm, & pulled my left arm back behind my back, and when I told her she was hurting me, she said she’d break my fingers if she had to! She put my forehead into the gravel, & I was stuck, there was nothing I could do. She had called my step-dad out, & he was standing there, just watching. I got on all four’s again, & she got me down, pulled my aim back, sat on top of me, & all I could do was say that I wouldn’t swear. She sat there for a few sec., then let me up. We got into the car, and after stopping at Freeport, she took me to school. I called my dad, and he said he’d come get me. Then on my way to H.R., my friends Jenny & Deanna saw I had been crying and when I told them what happened, they took me to the guidance office. Abby Ferguson deposition, Deposition Exhibit 1, 6-7. Mr. Stanko reported the incident to his immediate supervisor, Assistant Principal Max Krugle. After seeing Abby and reading her statement, he requested Abby be examined by the school nurse. Abby told Mr. Krugle that she did not want to go home that night, and that she was afraid of her mother. Nurse Mary Barbara Lagiov-ane examined Abby, and noted the minor scratches, scrapes and bruises on her knees, hands, wrists and an abrasion on her head. Abby told Nurse Lagiovane that she was afraid to go home. Nurse Lagiovane, and Messrs. Krugle and Stan-ko met with the principal, Mr. Robert Schleiden, to determine the next step. Principal Schleiden spoke with Abby and confirmed the facts in her written statement. Abby indicated to the principal she was adamant about not going home to her mother. The four school officials unanimously decided that this incident had to be reported to CYS. Kelly Patterson, who owns and runs Kelly’s Kids Childcare, Inc., a childcare center, concedes it was appropriate for the school officials to notify CYS pursuant to the mandatory reporting provisions of the Child Protective Services Law (“CPSL”), 23 Pa.C.S. §§ 6301 — 6384. Defendant Jo Ellen Bowman was the caseworker assigned by CYS to investigate the matter. She went to Freeport Area High School, read Abby’s statement, interviewed her and confirmed what she had written. Ms. Bowman reviewed the nurse’s report and observed the visible injuries to Abby. Abby expressed some concern about her safety and had asked Ms. Bowman not to notify her mother that CYS was involved. Bowman deposition, at 20, 28-29. Abby told Ms. Bowman “that her mother would be very angry knowing that we were involved,” and “she felt that the situation that had happened that morning was going to escalate and did not feel that the situation between herself and her mother had been rectified from the altercation that they had in the morning.” Bowman deposition, 28-29. Ms. Bowman had attempted to contact Mrs. Patterson by telephone at her daycare center, but was told she was not available. Ms. Bowman then contacted several police stations in boroughs which arguably had jurisdiction over some or all of the events, including South Buffalo Township Police Department, which had jurisdiction at the Patterson-Ferguson residence. Officer Yockey was the police officer from Township who went to the school to investigate. Kelly Patterson arrived at Freeport High School around 2:45 p.m. Patterson deposition at 72. At this point, she had no idea what had gone on at school that day, and she saw Principal Schleiden on the sidewalk and approached him. He told her he needed to speak with her, they went inside the school where there were several police officers, and the principal told Mrs. Patterson that Abby was in protective custody. Patterson deposition at 76. According to Ms. Bowman, she tried to speak with Mrs. Patterson, who was making a phone call to her lawyer, and Mrs. Patterson could not say how long it would take for her lawyer to get to school. It was late afternoon, the high school was in a football playoff game, and everyone in the school, including the school officials, wanted to go to the game. Ms. Bowman asked Mrs. Patterson if she wanted to go to the police station to wait for her attorney, and Mrs. Patterson said no. Bowman deposition, at 16-17. Ms. Bowman then discussed the matter with Officer Yockey and the school officials, and everyone agreed Abby Ferguson should not return home that night because they were not able to ensure her safety if she did. Bowman deposition, at 12-13, 21. Officer Yockey initiated a call to District Attorney Scott Andreassi, the district attorney for Armstrong County, who agreed Abby should be taken into protective custody, and advised Officer Yockey and Ms. Bowman to initiate that. He also advised Officer Yockey to file criminal charges against Mrs. Patterson based upon what the circumstances described to him, and Officer Yockey later filed criminal charges for simple assault, harassment, and disorderly conduct. According to both Ms. Bowman and Officer Yockey, Yockey assumed custody of Abby Ferguson under Pennsylvania’s Juvenile Act, 42 Pa.C.S. §§ 6301-6366, which was the normal procedure CYS and officers of the Township followed on weekends and after hours. Bowman deposition at 30-31. Immediately after assuming custody, perhaps simultaneously, Officer Yockey turned custody over to CYS/ Ms. Bowman. In the meantime, Mrs. Patterson’s attorney arrived, about 30 minutes after she placed the phone call to him. After speaking with her attorney briefly, he and Mrs. Patterson told Ms. Bowman that she would like to give a statement. However, Bowman told her it was too late, that they had already taken Abby into custody, and she declined to take Mrs. Patterson’s statement. Officer Yockey telephoned District Justice Michael L. Gerheim and advised him that Ms. Bowman and Abby Ferguson were on their way down to file a petition under the Protection from Abuse Act (“PFA Act”), 23 Pa.C.S.A. § § 6101-6118. Ms. Bowman drove to the district justice’s office, and assisted Abby in completing the petition. All parties agree that a non-emancipated minor, such as Abby Ferguson, is not authorized by the PFA Act to initiate a petition, 23 Pa.C.S. § 6106(a), and this petition and procedure were therefore flawed. Nevertheless, the district justice granted Abby Ferguson’s petition, ex parte, and awarded custody temporarily to her father, Jeffrey Ferguson, who by then had arrived at District Justice Gerheim’s office. Mrs. Patterson had not been informed about this PFA Act proceeding, nor was she notified of the order entered, although she found out on Sunday that Abby was with her father. On Monday morning, at Ms. Bowman’s suggestion, Mr. Ferguson went to the district justice’s office to file a second PFA petition. In that petition, he alleged that Mrs. Patterson and Abby had gotten in a fight the previous Friday and that Abby had sustained injuries and was afraid to go home to her mother. This too was an ex parte proceeding, at which Mrs. Patterson was neither notified nor given an opportunity to appear and contest the charges of child abuse. District Justice Gerheim granted the PFA petition for an indefinite period, again awarding emergency custody to Mr. Ferguson. Officer Yockey filed criminal charges for simple assault, harassment and disorderly conduct against Mrs. Patterson, with the advice of the District Attorney. At the preliminary hearing on November 23, 1998, the District Attorney’s office withdrew the charges. District Attorney An-dreassi testified he believed there was probable cause for the charges, but believed this was primarily a domestic/custody matter better off handled through civil proceedings. On November 18th, Mr. Ferguson withdrew his PFA petition. On November 23rd, CYS received a medical report from the Grove City Hospital indicating Abby had not suffered any serious injury, at which point CYS declared the charges of suspected child abuse to be “unfounded” and closed the case. At that point, Abby Ferguson was free to return home. However, she continued to stay with her father until Christmas day, December 25, 1998, when she returned home to her mother where she resides today. Thus, from November 6, 1998, until November 23, 1998, a period of 17 days, Mrs. Patterson was deprived of custody, or indeed any relationship or contact with her daughter Abby, and vice versa. During that same period of time, Mrs. Patterson believed herself prohibited by Pennsylvania regulation from working at or entering the premises of her several child care centers, while child abuse charges were pending, and so could not go to work or manage the centers in person. (Defendants appear to share, or at least do not challenge, that belief.) Plaintiffs’ Claims "Based upon the foregoing events, plaintiffs Kelly Patterson, individually and as parent and natural guardian of Abby Ferguson, Douglas Patterson, Kelly’s husband, and Kelly’s Kids Childcare, Inc., filed a lawsuit against CYS, County and Jo Ellen Bowman. Plaintiffs allege these defendants took Abby into protective custody without reasonable grounds to believe she was an abused child or that she was in imminent risk of serious bodily or physical injury, as they claim is required under the CPSL, and that defendants failed to comply with the procedural requirements of the CPSL by failing to schedule timely hearings and failing to notify Kelly Patterson of the charges against her and to provide her with a meaningful opportunity to respond to said charges. Complaint, ¶ 57. Kelly Patterson alleges she has suffered psychological damage, destruction of the family unit, loss of income, loss of professional reputation in the community, attorneys’ fees, costs and other expenses, and disruption of the relationship between her and her ex-husband, Jeffrey Ferguson, regarding custody of Abby Ferguson. Complaint, ¶ 60. Abby Ferguson alleges she has suffered psychological damage, destruction of the family unit, attorneys’ fees, costs and expenses, and disruption of her familial relationships, particularly with her parents. Complaint, ¶ 61. Kelly’s Kids Childcare, Inc., alleges it has suffered loss of income, loss of professional reputation in the community as a daycare center, loss of employees, payment of overtime to employees due to Kelly Patterson’s inability to be on the premises, loss of present and future clients, and other consequential damages. Complaint, ¶ 62. At Count One, plaintiffs allege violation of their civil rights under 42 U.S.C. § 1983, which they list as (a) their liberty and privacy interests in maintaining custody of the minor child without undue inference, including removal from the home without notice and a hearing, (b) the right of familial associations, (c) the right to freedom of intimate association, (d) the right to substantive and procedural due process under the Fourteenth Amendment, (e) the right to be free from excessive force, (f) the right to be free from malicious prosecution, (g) the right to be secure in one’s person and property, and (h) the right to freedom of enterprise. Complaint, ¶ 65. Plaintiffs further allege that defendant Bowman acted pursuant to a well-established custom and/or policy of the municipal defendants, the County and CYS, by, inter alia, wrongfully utilizing the PFA Act to circumvent rights afforded under the Pennsylvania CPSL, and that the defendants’ conduct “shocks the conscience.” Complaint, ¶¶ 66-67, 71. Plaintiffs’ remaining counts are “pendent state claims” under this Court’s supplemental jurisdiction. Complaint, ¶ 75. Count Two alleges on behalf of the individual plaintiffs against Jo Ellen Bowman, the intentional infliction of emotional distress. Complaint, ¶¶ 76-81. At Count Three, all of the.plaintiffs raise a claim of negligence against Ms. Bowman. Complaint, ¶¶82-87. In Count Four1, all of the plaintiffs raise a claim of civil conspiracy against all of the Armstrong County defendants. Complaint, ¶¶ 88-91. Kelly Patterson brings a claim against Ms. Bowman for malicious prosecution at Count Five. Complaint, ¶¶ 92-97. Finally, Douglas Patterson claims loss of consortium against Jo Ellen Bowman at Count Six. Complaint, ¶¶ 98-99. The Court granted leave to amend to join additional defendants, and plaintiffs filed an amended complaint joining Township and Officer Yockey. At Count One, all plaintiffs claim violation of civil rights under 42 U.S.C. § 1983 against Township and Officer Yockey. The amended complaint incorporated by reference the allegations of the initial complaint, and claimed the violations of civil rights set forth against the Armstrong County defendants, but with additional deprivations alleged, of (i) the right to counsel, (j) the right against self-incrimination, and (k) the right to freedom of expression. Amended Complaint, ¶ 6. The amended complaint further makes allegations of municipal liability in that Yockey was acting at all relevant times in accordance with well-established custom and/or policies of Township, in a variety of ways including utilizing the Juvenile Act and the PFA Act to circumvent rights afforded by the CPSL. Amended Complaint, ¶ 8. The remaining pendent state claims against the additional defendants are as follows: at Count One, on behalf of the individual plaintiffs against Yockey, intentional infliction of emotional distress (Amended Complaint, ¶¶ 17-22); at Count Three, all plaintiffs versus Yockey, for negligence (Amended Complaint, ¶¶ 23-28); at Count Four, all plaintiffs versus all defendants, for civil conspiracy (Amended Complaint, ¶¶ 29-32); at Count Five, Kelly Patterson versus Yockey, for malicious prosecution; and Count Six, Douglas Patterson versus Yockey, for loss of consortium. Discussion The primary battle waged in this summary judgment war is over plaintiffs’ claims under the Fourteenth Amendment and 42 U.S.C. § 1983 for substantive and, to a much lesser extent, procedural, due process. As set forth above, plaintiffs allege a variety of “rights” deprived them by the actions of the defendants in November 1998. However, with the exception of the right to be free from malicious prosecution, all of the other various rights identified are either components of the primary right to family integrity, which encompasses the due process claims, or have been abandoned by the plaintiffs because there is no evidence to support the theory. In this latter category are the right to be free from excessive force (there is no indication force was used against any of the plaintiffs), the right against self-incrimination, the right to freedom of expression, and the right to counsel. Accordingly, this Court’s analysis of plaintiffs’ civil rights claims under section 1983 is confined to their right to familial integrity as protected by substantive and procedural due process under the Fourteenth Amendment, and the right to be free from malicious prosecution. While there is overlap and interplay between the two types of due process claims in this case, nevertheless these are separate and distinct constitutional principles which require separate and distinct analy-ses. The parties’' respective memoranda overlook the distinction and are devoted almost exclusively to plaintiffs’ substantive due process claims, with only superficial treatment of the procedural due process claims and law. Nevertheless, the important facts relevant to the procedural due process claim appear in the record, and enable this Court to make a reasoned decision on this claim. Substantive Due Process All parties agree that Croft v. Westmoreland County CYS, 103 F.3d 1123 (3d Cir.1997), controls the disposition of the substantive due process claims in this case, although they vigorously contest its application. In Croft, the Westmoreland County CYS had received a multiple hearsay report that a young child, still in diapers, was being sexually abused by the father. A CYS caseworker, accompanied by a state trooper, went to the plaintiffs’ home that evening, interviewed the parents, and based on rampant speculation about perceived inconsistencies in the parents’ response to the allegation of sexual abuse, the CYS caseworker gave the father an ultimatum: “Unless he left his home and separated himself from his daughter until the investigation was complete, [the CYS caseworker] would take [the daughter] physically from the home that night and place her in foster care.” 103 F.3d at 1124. At the conclusion of this interview, the CYS caseworker was “uncertain whether any sexual abuse had occurred,” but since she could not rule it out, and the parents had not proved beyond any certainty there was no sexual abuse, she determined she needed to remove the child or the source of the alleged abuse from the home. The parents were compelled to acquiesce to the ultimatum. The district court entered summary judgment against the parents on their complaint raising impermissible interference with their Fourteenth Amendment liberty interest in the continued companionship of their daughter. The Court of Appeals for the Third Circuit reversed, stating: We recognize the constitutionally protected liberty interests that parents have in the custody, care and management of their children .... We also recognize that this interest is not absolute .... Indeed, this liberty interest in familial integrity is limited by the compelling governmental interests in the protection of children — particularly where the children need to be protected from their own parents.... The right to familial integrity, in other words, does not include a right to remain free from child abuse investigations.... The Due Process Clause of the Fourteenth Amendment prohibits the government from interfering in familial relationships unless the government adheres to the requirements of procedural and substantive due process .... In determining whether the Crofts’ constitutionally protected interests were violated, we must balance the fundamental liberty interests of the family unit with the compelling interests of the state in protecting children from abuse. Whatever disruption or disintegration of family life the Croft’s may have suffered as a result of the County’s child abuse investigation does not, in and of itself, constitute a constitutional deprivation .... Croft, 103 F.3d at 1125-26 (citations and footnote omitted; emphasis added). The Court noted that there are cases in which a child protective agency is justified in removing either a child or the parent from the home, “even where later investigation proves no abuse occurred.” Id. at 1126. However, Croft was not one of those cases, and the “state has no interest in protecting children from their parents unless it has some reasonable and articula-ble evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.” Id. (emphasis added). The Court focused on “whether the information available to the defendants at the time would have created an objectively reasonable suspicion of abuse justifying the degree of inference with the parents’ rights as the child’s parents.” Id. In the absence of such reasonable grounds, the governmental intrusions of this nature “are arbitrary abuses of power.” Id. (emphasis added). The Court held that the CYS caseworker, acting on an anonymous tip with multiple layers of hearsay, without any corroborating evidence, and without any evidence that convinced her one way or another that there was any sexual abuse involved, had insufficient justification for such a drastic infringement on parental and children’s rights (familial integrity), and so was an arbitrary abuse of government power. Id. at 1127. Under all of the circumstances, the Court held the CYS caseworker “lacked objectively reasonable grounds to believe the child has been sexually abused or was in imminent danger of sexual abuse.” Id. Accordingly, the district court’s grant of summary judgment in defendant’s favor was reversed and the case was remanded. Substantive due process was the only issue before the court, but it noted the policy of removing the suspected parent from the family home while the child abuse investigations were pending, absent any procedural safeguards, raised procedural due process concerns which it had no occasion to address or resolve. Id. at 1125, n. 3. Croft was explained and followed in Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir.1999). Miller involved claims for the deprivation of substantive and procedural due process by a mother and her three children, inter alia, against the City of Philadelphia and its Department of Human Services (“DHS”), for removing the children from the family home without probable cause and, in fact, based upon false information provided to the emergency judge who ordered the children removed temporarily. After the DHS investigation was pursued sporadically, it eventually was closed by the agency without further judicial proceedings. Citing Croft and Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), Miller recognized the fundamental liberty interests by parents in the care, custody and management of their children, an interest which must be balanced against the State’s interest in protecting children suspected of being abused. 174 F.3d at 373, 374. The Court held that where abusive government action by a member of the executive branch is alleged, “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Id. at 375, quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Under this standard, executive action will not expose the official to liability unless it is “so ill-conceived or malicious that it ‘shocks the conscience.’ ” Id. The Court emphasized that Croft was simply an application of the traditional substantive due process “shocks the conscience” standard. Miller, 174 F.3d at 376. Importantly, the Court also noted that deliberate indifference that shocks the conscience in one context may not seem or be so egregious in another context, making the nature and particulars of each case critical. Id. at 375. The Court stated: We recognize that a social worker acting to separate parent and child does not usually act in the hyperpressurized environment of a prison riot or a high-speed chase. However, he or she rarely will have the luxury of proceeding in a deliberate fashion, as prison medical officials can. As a result, in order for liability to attach, a social worker need not have acted with the “purpose to cause harm,” but the standard of culpability for stibstantive due process purposes must exceed both negligence and deliberate indifference, and reach a level of gross negligence or arbitrariness that indeed “shocks the conscience.” Id. at 375-76 (emphasis added). Although the Court discussed and identified facts which indicated defendants’ investigation was shoddy and less professional than it should have been, the Court concluded that, “Even if all of the facts alleged above [see note 2] were true, [the DHS investigator] did not act in a way that shocks the conscience.” 174 F.3d at 377. See also Robert S. v. City of Philadelphia, 2000 WL 341565, *4 (E.D.Pa. 2000) (“Lewis and Miller now require applying the ‘shock the conscience’ standard to all substantive due process claims under Section 1983.... It is a flexible standard depending on the facts of each case.” Citations omitted); Doman v. City of Philadelphia, 2000 WL 1224906, *2 (E.D.Pa.2000) (“The Third Circuit has made it clear that when it comes to a social worker’s interference with the parent-child relationship, only conduct that is so arbitrary as to shock the conscience may be considered violative of a parent’s substantive due process rights. Miller ....”) This case does not rise to the level of questionable, but not conscience shocking, conduct displayed in Miller, and it certainly does not rise to the level of arbitrariness seen in Croft, which did shock the conscience. Plaintiffs do not dispute that Kelly Patterson and her daughter Abby were involved in a physical altercation, a wrestling match, on the morning of November 6, 1998, and that Kelly Patterson pulled Abby by her hair from the car, wrestled her to the ground and pushed her face in the gravel driveway, causing minor bruises, cuts and scrapes, and that when she got to school, Abby was red faced, crying, and visibly upset. Importantly, plaintiffs also agree the school officials were, in Kelly Patterson’s own words, “absolutely” required to report the incident to the appropriate CYS agency under the CPSL. Similarly, plaintiffs do not dispute that Abby Ferguson unequivocally told several school officials, Officer Yockey and Ms. Bowman that she was afraid and did not want to go home, and that she knew her mother would be angry with her because CYS was now involved. All of the school officials and employees, as well as Officer Yockey and Ms. Bowman, were concerned on the afternoon of November 6, 1998, for Abby Ferguson’s safety and well being, and determined that they were not able to ensure her safety if she returned to the family residence. Under all of the circumstances, and comparing them with the facts and circumstances of Croft and Miller, defendants clearly, and as a matter of law, had reasonable and articulable evidence before them giving rise to a reasonable suspicion that Abby Ferguson had been abused or was in imminent danger of abuse. Their conduct did not approach the level of arbitrary government action of the case worker in Croft, and a reasonable jury could not conclude, on the undisputed historical facts, that their conduct “shocks the conscience.” Plaintiffs argue that it was not objectively reasonable for defendants to believe, on the afternoon of November 6, 1998, that Abby Ferguson had been abused or was in danger of being abused, for several reasons. 1. Retaliation. Plaintiffs vigorously contend that defendants’ actions, particularly Ms. Bowman’s, were in retaliation for Mrs. Patterson having the temerity to refuse to give them a statement until after she had spoken with her attorney. They claim this was an interference with Mrs. Patterson’s right to counsel. It is not apparent how a constitutional “right to counsel” arises in this civil proceeding, and plaintiffs have not attempted to show how it might. Even if it is true that Bowman was peeved about Mrs. Patterson’s request to speak with an attorney, however, such “retaliation” would not “shock the conscience.” In Miller, the Court of Appeals rejected the argument that the due process clause required the government to allow the parent or her attorney to take part in an emergency hearing at the hospital, even though both were present. 174 F.3d at 372-73. In any event, as a factual matter the record does not bear out plaintiffs’ contention. This situation had been percolating all day, from the morning until around 2:45 p.m. when Kelly Patterson came to school to get Abby, and became aware of CYS and police involvement. Ms. Bowman did not want to go in person to Mrs. Patterson’s child care center, and attempted to contact Mrs. Patterson earlier by telephone, but she inexplicably did not receive the messages. Mrs. Patterson does not dispute that when she was attempting to contact her attorney, she told Ms. Bowman that she had no idea when her attorney would arrive, and that it could be 30 minutes or “it could take six hours.” (She says she did not have an “attitude” and defendants claim she did, but that is not material.) At that point, Ms. Bowman and Officer Yockey made the decision to take Abby into protective custody. Although Mrs. Patterson’s attorney arrived at the school only about 30 minutes after he received the phone call, at around 4:00 p.m., by that time defendants’ decision had been made. Their refusal to listen to Mrs. Patterson’s statement, at that time, does not shock this Court’s conscience. See Miller, 174 F.3d at 372-73. While another CYS caseworker or police officer might have been inclined to listen to her statement at that point, and while, perhaps, it might have been preferable for them to have done so, failure to do so does not qualify as an arbitrary governmental abuse of power. 2.No Opportunity to Explain. Closely related to the retaliation argument, plaintiffs argue their substantive due process rights were violated by defendants’ refusal to listen to Mrs. Patterson’s explanation for the day’s events before they took Abby Ferguson into protective custody. As noted, there was no constitutional requirement that defendants listen to Mrs. Patterson’s explanation at that time. Miller, 174 F.3d at 372-73. Moreover, Kelly Patterson’s explanation, painstakingly detailed in her deposition testimony, is not significantly different from Abby’s seven-page handwritten statement or from her oral statements to school officials, Ms. Bowman and Officer Yoekey. Instead, Kelly Patterson’s version of the events of November 6th, which presumably would have been the version she told officials on November 6th had she been permitted to make a statement, attempts to put the wrestling match in context. That context, the escalating disagreement that had been brewing for over a week about Abby wanting to live with her father, would show Mrs. Patterson in a more sympathetic light, not as a mean or abusive parent but as a frustrated mother who had reached her wits end with a rebellious teenager, ending up in a hair-pulling, wrestling match in the driveway of their home when all else had failed. But this context was evident from Abby’s own handwritten statement, and does not contradict the historical facts known to defendants at that time, nor would it have changed defendants’ concern that they could not ensure Abby’s safety if she were permitted to return to the home, while emotions continued to run high. 3. The Fear Factor. Plaintiffs also contend that Abby Ferguson told defendants at the school that she was not a victim of child abuse, and that, even though she said she was afraid, she never told them that she was afraid that her mother would hit her, and that defendants should have conducted additional investigation or probed into the psychological foundation of Abby’s fear. This argument is somewhat misleading, and rests on a distinction without a difference. Abby told everyone at school that day she was afraid to go home. She told everyone she was in a physical fight with her mother, and they saw her bruises, scrapes and cuts. Abby told school officials and defendants she knew her mother would be angry, and particularly that she would be angry that CYS was involved. She also said she was afraid that the situation would escalate if she were to go home with her mother. School officials and defendants were not required to probe more deeply into the psychological basis of Abby Ferguson’s fear. Whether she was afraid that her mother would hit her (and there is no evidence of that) or afraid to go home because the situation was out of control and her mother would be angry (and there was plenty of evidence of that), the fact remains that there was reasonable suspicion of abuse or imminent danger of abuse, and defendants could not ensure Abby’s safety if they were to allow her to return home with Mrs. Patterson. 4. Minor Nature of Injuries. Everyone agrees that the CPSL requires “serious physical or mental injury” not explained by accident to sustain a finding of child abuse on the grounds of bodily injury. 23 Pa.C.S. § 6303. Because Abby’s injuries were obviously not serious, it was unreasonable for defendants to conclude she had been abused. Defendants did not, however, determine on November 6th that Abby had been abused within the meaning of the CPSL, rather, they determined there was a reasonable suspicion Abby had been abused or was in imminent danger of being abused if she were to be allowed to return home. Whether or not she was in fact abused within the meaning of the CPSL (i.e., had sustained serious physical or mental injury) was a determination on the merits for another day. As it turned out, after CYS received Abby’s medical reports from Grove City Hospital, it confirmed her injuries were not serious, and on November 23, 1998, declared the investigation “unfounded.” On November 6, 1998, defendants were not required to know or guess at the full extent of Abby Ferguson’s injuries. All that the constitution required of them was that they have reasonable and articulable evidence giving rise to reasonable suspicion that she had been abused or was in imminent danger of abuse. See Brown v. Town of East Haddam, 56 F.Supp.2d 212 (D.Conn.1999), aff'd 213 F.3d 625, 2000 WL 536156 (2000) (School officials had reasonable suspicion to suspect child abuse or danger of child abuse when daughter arrived at school with a bruise under her left eye after mother had given her a backhand during an argument on the ride into school, and where the daughter told officials that mother had been abusive for some time and that she no longer wanted to live in the marital home). Accordingly, the Court finds that the individual defendants are entitled to summary judgment on plaintiffs’ claims of a deprivation of their rights to substantive due process under the Fourteenth Amendment and 42 U.S.C. § 1983. Because there is no constitutional deprivation of substantive due process rights, the municipalities are also entitled to summary judgment on this claim. Plaintiffs state substantive due process claims under the Fourteenth Amendment against the County, CYS and the Township which are not necessarily foreclosed by the holding that the individual defendants are not liable. See, e.g., Estate of Burke v. Mahoney City, 40 F.Supp.2d 274 (E.D.Pa.1999), following Fagan v. City of Vineland, 22 F.3d 1283 (en banc), aff'd in part, 22 F.3d 1296 (3d Cir.1994) (substantive due process claims against municipality may survive even though underlying fourth amendment claims against officer were dismissed). In Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the United States Supreme Court held that although municipalities and other local governmental bodies are “persons” within the meaning of section 1983, a municipality may not be held vicariously liable under section 1983 solely because of the existence of an employer-employee relationship with a tortfeasor. Instead, in Monell and subsequent cases, we have required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal “policy” or “custom” that caused the plaintiff’s injury.Locating a “policy” ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. Monell, supra, at 694, 98 S.Ct., at 2027. Similarly, an act performed pursuant to a “custom” that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.... As our § 1983 municipal liability jurisprudence illustrates, however, it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. Board of County Comm’rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (additional citations omitted). The Court of Appeals for the Third Circuit has explained, in Beck v. City of Pittsburgh, 89 F.3d 966, 971-72 (3d Cir.1996): When a suit against a municipality is based on § 1983, the municipality can only be liable when the alleged constitutional transgression implements or executes a policy, regulation or decision officially adopted by the governing body or informally adopted by custom. Monell ... Thus, although the municipality may not be held liable for a constitutional tort under § 1983 on the theory of vicarious liability, it can be held responsible as an entity when the injury inflicted is permitted under its adopted policy or custom.... The Court’s holding and reasoning in Monell have created a two-path track to municipal liability under § 1983, depending on whether the allegation is based on municipal policy or custom. In Andrews [v. City of Philadelphia, 895 F.2d 1469 (3d Cir.1990) ] this court articulated the distinctions between these two sources of liability: A government policy or custom can be established in two ways. Policy is made when a “decisionmaker possessing] final authority to establish municipal policy with respect to the action” issues an official proclamation, policy, or edict. A course of conduct is considered to be a “custom” when, though not authorized by law, “such practices of state officials [are] so permanent and well-settled” as to virtually constitute law. 895 F.2d at 1480 (citations omitted); see also Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990) (same). Custom, on which the plaintiff relies in this case, may also be established by evidence of knowledge and acquiescence. See Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir.1989), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 591 (1989). Moreover, a plaintiff must show not only an unlawful policy or custom of the municipality, he or she must also establish that such policy or custom was the proximate cause of the injuries sustained, by showing a plausible nexus or affirmative link between the alleged policy or custom and the injuries. Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir.1996). Plaintiffs have made little effort to shoulder their burden of proving the existence of a municipal policy or custom, lawful or unlawful, that deprived them of substantive due process, nor do they discuss, much less attempt to show by record evidence, any casual connection between some vaguely identified custom and the damages claimed. Accordingly, the Court must also grant summary judgment for the municipal entities. See, e.g., Heron v. City of Philadelphia, 987 F.Supp. 400, 404 (E.D.Pa.1997). Qualified Immunity — Substantive Due Process All defendants raise qualified immunity as a defense to plaintiffs’ civil rights claims. The required approach to qualified immunity is to examine the record to determine whether plaintiffs have supported a constitutional violation before proceeding to determine if qualified immunity villi insulate defendants’ conduct from further judicial scrutiny. Sterling v. Borough of Minersville, 232 F.3d 190, 193 (3d Cir.2000); Miller, 174 F.3d at 374, citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) and Larsen v. Senate of the Commonwealth of Pennsylvania, 154 F.3d 82, 86 (3d Cir.1998) (“[WJhen a qualified immunity defense is raised a court first should determine whether the plaintiff has asserted a violation of a constitutional right at all”). This Court’s determination on the merits of plaintiffs’ substantive due process claim renders discussion of qualified immunity in that context unnecessary. Nevertheless, the Court deems it appropriate to address the issue of qualified immunity in the alternative, assuming arguendo that defendants’ conduct might be viewed as supporting a claim for a substantive due process violation. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the United States Supreme Court held “that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” This doctrine of official or qualified immunity recognizes “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Id. at 807, 102 S.Ct. 2727 (internal quotations and citation omitted). Recently, the Court of Appeals for the Third Circuit set out the proper analysis of the defense of qualified immunity: In determining whether the individual CYS officials are entitled to claim qualified immunity, we engage in a three-part inquiry: (1) whether the plaintiffs alleged a violation of their statutory or constitutional rights; (2) whether the right alleged to have been violated was clearly established in the existing law at the time of the violation; and (3) whether a reasonable official should have known that the alleged action violated the plaintiffs’ rights. Rouse v. Plantier, 182 F.3d 192, 196-97 (3d Cir.1999).... The second and third parts are related, and involve an inquiry into the “objective legal reasonableness” of an official’s action, assessed in light of legal rules that were “clearly established” at the time the officials took the action. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal quotations and citation omitted). Rights may be clearly established even though the precise conduct at issue has not yet been declared unlawful See id. at 640, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523. Throughout the inquiry, the officials’ subjective intent is irrelevant. See id. at 639, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523. The Supreme Court has directed that the right in question should be defined in a particularized and relevant manner, rather than abstractly. See id. at 640, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523. Doe v. County of Centre, Pennsylvania, 242 F.3d 437, 453-54 (3d Cir.2001) (emphasis added). In Good v. Dauphin County Social Services for Children and Youth, 891 F.2d 1087 (3d Cir.1989), a mother suspected of child abuse brought a civil rights action against the municipal and county officials who conducted an allegedly improper and intrusive search at her home. The Court of Appeals for the Third Circuit held that the social services caseworker and police officer who assisted him were not entitled to qualified immunity because the law was clearly established, at the time of the search, that they could not conduct an intrusive physical examination of a child in the absence of a parent’s consent or an objectively reasonable belief that the child was in imminent danger of serious bodily injury and that the intrusions were necessary to prevent that harm. The Court of Appeal’s analysis in Good examined the Supreme Court’s opinion in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), which smoothed out a few wrinkles in the highly nuanced doctrine of qualified immunity: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of preexisting law the unlawfulness must be apparent. [Anderson, 483 U.S. at 639-40, 107 S.Ct. 3034] (citation omitted). The Anderson Court further pointed out that the “reasonable official” test includes a factual as well as a legal component: It follows from what we have said that the determination whether it was objectively legally reasonable to conclude that a given search was supported by probable cause or exigent circumstances will often require examination of the information possessed by the searching officials.... The relevant question in this case, for example, is the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Anderson’s subjective beliefs about the search are irrelevant. Id. at 641, 107 S.Ct. at 3034. As we read Anderson, it teaches two lessons that are important in resolving the case before us. First, in order for the governing law to be sufficiently well established for immunity to be denied, it is not necessary that there have been a previous precedent directly in point. “ ‘[SJome but not precise factual correspondence’ to precedent” is necessary for the defendant to be charged with knowledge of the unlawfulness of his or her actions. Stoneking v. Bradford Area School District, 882 F.2d 720, 726 (3d Cir.1989) (quoting People of Three Mile Island v. Nuclear Regulatory Comm., 747 F.2d 139, 144 (3d Cir.1984)). The ultimate issue is whether, despite the absence of a case applying established principies to the same facts, reasonable officials in the defendants’ position at the relevant time could have believed, in light of what was in the decided case law, that their conduct rvould be lawful. Second, even where the officials clearly should have been aware of the governing legal principles, they are nevertheless entitled to immunity if based on the information available to them they could have believed their conduct would he consistent with those principies. With these teachings in mind we turn to the state of the law at the relevant time, and then to the information available to the defendants in this case. Good, 891 F.2d at 1092 (emphasis added). The relevant law was clearly established by Croft no later than January, 1997, that government officials could not take a child into temporary protective custody unless they had reasonable and articulable evidence giving rise to a reasonable suspicion that she had been abused or was in imminent danger of abuse. Based upon the facts and circumstances known to defendants on November 6th, as set forth above, including bruises, scrapes and cuts from a physical altercation with Mrs. Patterson, and a very upset child who consistently and repeatedly told officials she was afraid the situation might escalate if she went home and she did not want to go home, it was objectively reasonable for them to suspect that Abby may have been abused or that she was in imminent danger of being abused if she were permitted to go home with her mother. While subsequent medical examination disclosed no broken bones or serious injuries, which therefore dictated a finding of no physical abuse and an “unfounded” determination closing the investigation, defendants were not required to allow Abby to return home on November 6th when they did not know the full extent of her injuries and when they reasonably believed they were unable to ensure her safety at home. If defendants erred, they erred on the side of Abby’s safety and welfare. The doctrine of qualified immunity insulates officials who reasonably exercise them discretion in such circumstances, affording them the benefit of the doubt when they reasonably make difficult judgment calls. Assuming there was error, therefore, the individual defendants are nevertheless entitled to qualified immunity on plaintiffs’ claims under 42 U.S.C. § 1983 for violation of their Fourteenth Amendment substantive due process rights. E.g., Hollingsworth v. Hill, 110 F.3d 733 (10th Cir.1997); Baker v. Racansky, 887 F.2d 183 (9th Cir.1989). Furthermore, the individual defendants solicited advice of counsel, and no less than the District Attorney advised them to take Abby into protective custody on November 6, 1998, and for Officer Yockey to file criminal charges. Defendants’ reliance on this advice, reasonable on its face, offers additional justification for these defendants’ actions, and for qualified immunity. Hollingsworth, 110 F.3d at 740-42. Procedural Due Process While defendants did not violate plaintiffs’ rights to substantive due process, the Court finds they did violate plaintiffs’ Fourteenth Amendment rights to procedural due process. The extent of that procedural due process violation is not clear, however. Determination of that issue will have a direct impact on plaintiffs’ damages, and will require development at trial and a factual determination by the jury. Although not developed in the respective memoranda of law, the procedural due process analysis is distinct from the substantive due process analysis. As discussed above, there is no question that the fundamental expectations of a parent in the care, custody and management of her child is a well-recognized liberty interest, entitled to the protections of the due process clause. Croft, 103 F.3d at 1125. Indeed, it is “perhaps the oldest of the fundamental liberty interests recognized” by the United States Supreme Court. Gruenke v. Seip, 225 F.3d 290, 304 (3d Cir.2000), quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The question then becomes, what process is due? “Once it is determined that due process applies, the question remains what process is due.” ... We turn to that question, fully realizing as our cases regularly do that the interpretation and application of the Due Process Clause are intensely practical matters and that “(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” ... There are certain bench marks to guide us, however, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), a case often invoked by later opinions, said that “(m)any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Id., at 313, 70 S.Ct. 652. “The fundamental requisite of due process of law is the opportunity to be heard,” ..., a right that “has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to ... contest.” .... At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” Baldwin v. Hale, 1 Wall. 223, 233, 17 L.Ed. 531 (1863). It also appears from our cases that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved. Goss v. Lopez, 419 U.S. 565, 577-79, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (ten day suspension of high school student without notice or hearing and opportunity to be heard prior to suspension violated right to procedural due process; parallel and some other citations omitted; emphasis added). The frequently cited test for whether process afforded was constitutionally adequate was formulated in Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which states: [O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 334-35, 96 S.Ct. 893 (citations omitted; emphasis added), applied in Miller, 174 F.3d at 373. There is a strong constitutional preference for pre-deprivation hearings, preceded by meaningful notice and meaningful opportunity to be heard. Goss, 419 U.S. at 579-81, 95 S.Ct. 729; see also Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (collecting cases). However, given the flexible nature of the due process inquiry and the myriad of situations in which the inquiry arises, “courts have found that even though parents have a fundamental liberty interest in the custody of their children they do not always have a right to prior process when the state removes their children from their custody. Courts agree that ‘in emergency circumstances which pose an immediate threat to the safety of a child, officials may temporarily deprive a parent of custody without parental consent or a court order.’ ” Egervary v. Rooney, 80 F.Supp.2d 491, 501 (E.D.Pa.2000), quoting Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir.1997) (numerous additional citations omitted). But when the circumstances justify an emergency, expedient deprivation without prior hearing, the state is obligated to provide a prompt, post-deprivation hearing in a meaningful time and manner. “In such cases, the necessary notice and ... hearing should follow as soon as practicable...” Goss, 419 U.S. at 582-83, 95 S.Ct. 729. There is a point at which an unjustified delay in providing or completing a post-deprivation proceeding becomes an unconstitutional due process violation. Cleveland, Bd. of Educ. v. Loudermill, 470 U.S. 532, 547, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The United States Supreme Court held that “the significance of such a delay cannot be evaluated in a vacuum,” Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 242, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988), and must take into account several factors: In determining how long a delay is justified in affording a post-suspension hearing and decision, it is appropriate to examine the importance of the private interest and the harm to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken. Mallen, 486 U.S. at 241, 108 S.Ct. 1780. Thus, as the District Court for the Eastern District of Pennsylvania has said, even “when an imminent threat of harm justifies removing a child from their parent’s custody without prior process, there must be a prompt, state initiated post-deprivation hearing to ratify the removal.” Egervary, 80 F.Supp.2d at 502 (collecting cases). That generally requires that the state initiate the post deprivation proceedings in a matter of hours or days, not weeks. Id., 80 F.Supp.2d at 502-03 (collecting cases). What Process Is Provided by State Law? Before determining whether the postde-privation process, if any, was adequate in this case, there are three Pennsylvania statutes relevant to the child protective custody context, that must be read in pari materia: the CPSL, the Juvenile Act, and the PFA Act. The Child Protective Services Law, Chapter 63, 23 Pa.C.S. §§ 6301-6384 The CPSL was enacted based on the Pennsylvania legislature’s finding that abused children are in need of an effective child protective service to prevent them from suffering additional injury and impairment. 23 Pa.C.S. § 6302(a). The expressed legislative purpose of the CPSL is: [T]o encourage more complete reporting of suspected child abuse; to the extent permitted by this chapter, to involve law enforcement agencies in responding to child abuse; and to establish in each county protective services for the purpose of investigating the reports swiftly and competently, providing protection for children from further abuse and providing rehabilitative services for children and parents involved so as to ensure the child’s well-being and to preseiwe, stabilize and protect the integrity of family life wherever appropriate or to provide another alternative permanent family when the unity of the family cannot be maintained. It is also the purpose of this chapter to ensure that each county children and youth agency establish a program of protective services with procedures to assess risk of harm to a child and with the capabilities to respond adequately to meet the needs of the family and child who may be at risk and to prioritize the response an