1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-6-1997

Croft v. Westmoreland Cty

Precedential or Non-Precedential:

Docket 95-3528

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Recommended Citation

"Croft v. Westmoreland Cty" (1997). 1997 Decisions. Paper 4.

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1

 THE UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________ 

 No. 95-3528 

 __________ 

 HENRY L. CROFT, JR.; CAROL CROFT, INDIVIDUALLY 

 AND AS PARENTS AND NATURAL GUARDIANS OF CHYNNA CROFT, 

A MINOR, 

 Appellants 

v. 

 WESTMORELAND COUNTY CHILDREN AND YOUTH SERVICES; 

 WESTMORELAND COUNTY; CARLA DANOVSKY, 

 Appellees 

 __________ 

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

 (D.C. Civ. No. 93-00995) 

 __________ 

 Argued June 28, 1996 

 ___________ 

 Before: BECKER, NYGAARD AND LEWIS, Circuit Judges 

 __________ 

 (Opinion Filed: January 6, 1997) 

 __________ 

 Alexander H. Lindsay, Jr. 

 Lindsay, Lutz, Jackson, 

 Pawk & McKay 

 408 North Main Street 

 Butler, Pa. 16001 

 Susan S. Jackson (Argued) 

 Lindsay, Lutz, Jackson, 

 Pawk & McKay 

 408 North Main Street 

 Butler, Pa. 16001 

 Counsel for Appellants 

 Sherry L. Halfhill (Argued) 

 Burns, White & Hickton 

 120 Fifth Avenue 

 Suite 2400 
2

 Pittsburgh, Pa. 15222 

 Counsel for Appellee 

 Westmoreland County Children 

 and Youth Services and 

 Appellee Carla Danovsky 

 

 

 David J. Singley (Argued) 

 Israel, Wood & Puntil 

 310 Grant Street 

 Suite 501 

 Pittsburgh, Pa. 15219 

 Counsel for Appellee 

 County of Westmoreland 

 

 __________ 

 OPINION OF THE COURT 

 __________ 

NYGAARD, Circuit Judge. 

 Plaintiffs-Appellants, Dr. Henry L. Croft, Jr., and 

Carol Croft, individually and as parents and natural guardians of 

Chynna Croft, appeal an order of the district court granting 

summary judgment for defendants-appellees, Carla Danovsky, 

Westmoreland County Children and Youth Services, and Westmoreland 

County. We will reverse and remand. 

I. 

 On February 1, 1993, Gerald Sopko, Assistant Director 

of the Westmoreland County Children's Bureau received a call from 

Childline, informing him that Dr. Croft was sexually abusing his 

daughter, Chynna. Sopko was further told that the child slept 

with her parents and that she had recently been out of the house 

naked, walked to a neighbor's house, knocked on the door, and 

told the neighbors that she was "sleeping with mommy and daddy." 
3

 Barbara Jollie, Program Director for the Assessment 

Department of the Westmoreland County Children's Bureau, assigned 

the matter to Carla Danovsky for investigation. Danovsky, 

accompanied by State Police Trooper Griffin, went to the Croft 

home that night. Danovsky told Dr. Croft she was investigating 

him for possible sexual abuse of his daughter based on the 

Childline report. Dr. Croft consented to be interviewed. 

 Dr. Croft explained that Chynna had indeed, in April of 

1992, left her bed without waking her parents, gone downstairs 

and outside, and locked herself out of the house. She then went 

to the house of her babysitter/nanny, a short distance from the 

Croft home, wearing her pajama top and holding her pajama bottoms 

with a soiled diaper inside. He further provided Danovsky with 

the telephone number of the nanny who could verify his version of 

events. 

 Dr. Croft agreed that his daughter had seen him naked 

and that, in fact, the family vacationed in the French West 

Indies where nude beaches are routine. Dr. Croft stated that his 

wife sunbathed nude around Chynna. He explained that Chynna 

suffered from seizures and, although she regularly slept in her 

parents' bed so they could be nearby if necessary, she slept 

naked only rarely. Henry and Carol Croft slept clothed. Dr. 

Croft told Danovsky that he had applied medicinal creams to her 

vaginal area when she had a rash. He denied sexually abusing 

Chynna. 

 Danovsky gave Dr. Croft an ultimatum: unless he left 
4

his home and separated himself from his daughter until the 

investigation was complete, she would take Chynna physically from 

the home that night and place her in foster care. Dr. Croft then 

left the room and Danovsky interviewed Carol Croft while Chynna 

sat in her lap. Carol Croft confirmed Dr. Croft's version of the 

April 1992 incident when Chynna locked herself out of the house. 

 Finally, Danovsky questioned Chynna, who also confirmed Dr. 

Croft's version of the lock-out incident. Chynna provided no 

indication that she had ever been sexually abused. Danovsky then 

reiterated her ultimatum, that unless Dr. Croft immediately left 

his home and had no contact with his daughter, Danovsky would 

remove Chynna from the home that very night and place her in 

foster care. Faced with this dilemma, Dr. Croft complied with 

her ultimatum, and left his home, wife and daughter.1

 Danovsky testified to some inconsistencies between the 

statements of the Croft parents. She testified that Carol Croft 

said that Chynna never saw Henry Croft swimming naked, and that 

she sunbathed topless but not totally nude. One of the parents 

informed Danovsky that Chynna never slept naked in their bed, 

while the other said she was not clothed all the time. In sum, 

however, the differences were insignificant and reasonable under 

the circumstances. Danovsky also testified that, pursuant to 

 

 

1 Defendants repeatedly have characterized Dr. Croft's 

decision to leave as "voluntary." This notion we explicitly 

reject. The threat that unless Dr. Croft left his home, the 

state would take his four-year-old daughter and place her in 

foster care was blatantly coercive. The attempt to color his 

decision in this light is not well taken. 
5

County policy, a parent accused of sexual abuse must prove beyond 

any certainty that there was no sexual abuse before she would be 

permitted to leave a child with his or her parents. She further 

testified that if a County caseworker does not know whether or 

not the allegation is true, the child will be separated from the 

alleged perpetrator. Danovsky also testified that at the 

conclusion of her interview with the Crofts, she was uncertain 

whether any sexual abuse had occurred. 

 The Crofts filed a complaint in the federal district 

court against Westmoreland County Children and Youth Services 

(WCCYS), Carla Danovsky and Westmoreland County. They alleged 

that the defendants had impermissibly interfered with their 

Fourteenth Amendment liberty interest in the companionship of 

their daughter. 

 Defendants filed motions to dismiss the complaint, 

which, since discovery had been completed, were considered as 

motions for summary judgment. They argued that defendant 

Danovsky was entitled to qualified immunity for her actions and 

that the county and WCCYS enjoyed municipal immunity from the 

charges. The court entered summary judgment against the Crofts 

on all three counts, asserting that the Crofts would 

impermissibly have the court elevate their right to freedom of 

intimate association above Defendants' obligation to protect 

children. The Crofts timely appealed.2

 

 

 2We note that the Crofts are appealing the district 

court’s order with respect only to the County and the WCCYS, not 

as to Carla Danovsky. Furthermore, the Crofts are only appealing 

the district court’s determination of their substantive due 
6

II. 

 We recognize the constitutionally protected liberty 

interests that parents have in the custody, care and management 

of their children. See Lehr v. Robertson, 463 U.S. 248, 258, 103 

S.Ct. 2985, 2991-92 (1983); Myers v. Morris, 810 F.2d 1437, 1462 

(8th Cir. 1987). We also recognize that this interest is not 

absolute. Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir. 

1994); Myers, 810 F.2d at 1462. Indeed, this liberty interest in 

familial integrity is limited by the compelling governmental 

interest in the protection of children --- particularly where the 

children need to be protected from their own parents. See Myers, 

810 F.2d at 1462. The right to familial integrity, in other 

words, does not include a right to remain free from child abuse 

investigations. Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 

1993). 

 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.3 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 

 

process issues. 

 

 3We note here only that the policy of removing the 

suspected parent from the family home during the pendency of 

child abuse investigations absent any procedural safeguards 

raises a procedural due process issue. 
7

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. Watterson, 

987 F.2d at 8; see also Frazier v. Bailey, 957 F.2d 920, 931 (1st 

Cir. 1992). 

 We realize there may be cases in which a child services 

bureau may be justified in removing either a child or parent from 

the home, even where later investigation proves no abuse 

occurred. However, a state has no interest in protecting 

children from their parents unless it has some reasonable and 

articulable evidence giving rise to a reasonable suspicion that a 

child has been abused or is in imminent danger of abuse. See

Lehr, 103 S.Ct. at 2990 (declaring liberty interests in 

preserving the family unit "are sufficiently vital to merit 

constitutional protection in appropriate cases") (emphasis 

added); accord Myers, 810 F.2d at 1462-63 (noting parental 

liberty interest in maintaining integrity of family unit is not a 

clearly established right where there is a "reasonable suspicion" 

abuse may have occurred). 

 Our focus here is whether the information available to 

the defendants at the time would have created an objectively 

reasonable suspicion of abuse justifying the degree of 

interference with the Crofts’ rights as Chynna’s parents.4 

 

 

 4 This proposition is most often raised against 

government action that threatens to remove a child from his or 

her home. Nonetheless, we can discern no rational distinction 

which would entitle governments to order parents from their homes 
8

Absent such reasonable grounds, governmental intrusions of this 

type are arbitrary abuses of power. See Gottlieb v. County of 

Orange, 84 F.3d 511, 517 (2d Cir. 1996) (finding no due process 

violation for removing child where child welfare workers possess 

objectively reasonable basis for believing parental custody 

represents a threat to child's health or safety); Thomason v. 

SCAN Volunteer Services, Inc., 85 F.3d 1365, 1371 (8th Cir. 1996) 

(holding child care worker entitled to qualified immunity in § 

1983 action where he or she removes child on reasonable suspicion 

of child abuse); cf. 42 Pa. Cons. Stat. § 6324 and 23 Pa. Cons. 

Stat. § 6315 (providing for removing child from home only where 

there are reasonable grounds to believe the child suffers from 

injury, or is in imminent danger of injury from her 

surroundings); Myers, 810 F.2d at 1462-63 (noting parental 

liberty interest in maintaining integrity of family unit is not a 

clearly established right where there is a "reasonable suspicion" 

that abuse may have occurred). 

 Before the interviews, Danovsky possessed a six-fold 

hearsay report by an anonymous informant stating that the mother 

had told a friend that Dr. Croft had abused Chynna and that 

Chynna had recently been put out of the house naked, walked 

several miles, was found by a neighbor, and said she was sleeping 

with her parents.5

 

and arbitrarily separate parents from their children; or to 

deprive children of their liberty interests in continued 

companionship with their parents. 

 

 5The anonymous tip reported that "[T]he mother told a 

friend. . ." of sexual abuse. Subsequently, the information went 
9

 Dr. Croft confirmed that an incident bearing only the 

barest resemblance to the anonymous tip had happened. Far from 

corroborating the anonymous tip, the Crofts' statements raised 

serious questions about the veracity of the informant. An 

anonymous tip may justify investigation but will not provide 

reasonable grounds for removal of a family member absent 

independent, articulable criteria of reliability; and certainly 

not when all evidence is to the contrary. Cf. Alabama v. White, 

496 U.S. 325, 328, 110 S.Ct. 2412, 2415 (1990) (anonymous tip, 

absent sufficient indicia of reliability, will not support 

reasonable suspicion necessary to justify stop-and-frisk); United 

States v. Roberson, 90 F.3d 75, 78 (3d Cir. 1996) (anonymous tip 

that only contains information readily observable at the time the 

tip is made does not supply reasonable suspicion to stop). 

 Danovsky was entitled to view the statements of an 

alleged perpetrator skeptically. She was not, however, entitled 

to rely on the unknown credibility of an anonymous informant 

unless she could corroborate the information through other 

sources which would have reduced the chance that the informant 

was recklessly relating incorrect information or had purposely 

distorted information. See Illinois v. Gates, 462 U.S. 213, 103 

S.Ct. 2317, 2331 (1983) (anonymous tip, without other indicia of 

 

 from the informant, to Childline, to Gerald Sopko, to Barbara 

Jollie, to Danovsky. We recognize that child abuse will often be 

reported anonymously. We additionally realize that such hearsay 

may often be the only available evidence to alert the child abuse 

investigators. Anonymous informants, such as those who report 

suspected abuse on the Childline, are undoubtedly important in 

policing “invisible crimes” like child sexual abuse. 
10

reliability, does not establish probable cause for search 

warrant). 

 Danovsky, in her deposition testimony, pointed to what 

she called "red flags" -- statements given during the interviews 

which raised questions in her mind about whether the tip was true 

-- as further justification for forcing Henry Croft from his 

home. The red flags cited by Defendants are incapable of 

providing the necessary reasonable grounds. For example, at one 

point during the interview, Dr. Croft told Danovsky that he had 

applied vaginal creams to Chynna when she had a rash, which 

Danovsky interpreted to mean that he regularly gave his daughter 

vaginal exams. Likewise, Danovsky's reliance on supposed 

inconsistencies between the statements of Carol and Dr. Croft is 

without foundation. None of the cited inconsistencies is 

evidence of child sexual abuse, nor did any of the statements in 

any way confirm the allegations of the anonymous tip. Even 

considered together, minor inconsistencies which provide no 

affirmative evidence of sexual abuse cannot alone establish the 

objectively reasonable grounds necessary to remove a family 

member from the family unit. 

 Most damaging to Defendants is Danovsky's deposition 

testimony that, after the interviews, she had no opinion one way 

or the other whether sexual abuse had occurred. Alternatively, 

Danovsky testified that she did not have enough information to 

make a determination and that further investigation was required. 

 Under either statement, Danovsky did not have reasonable 
11

grounds, to any degree of certainty, that Chynna was sexually 

abused or was in imminent danger of abuse. She possessed no 

evidence of abuse beyond an anonymous tip. Danovsky had no 

physical evidence of sexual abuse with which to base an opinion. 

 She was merely presented with an anonymous tip relating an 

incident which was reasonably explained by the accused parents. 

Record evidence establishes that Danovsky lacked any objective 

evidence of sexual abuse, and, indeed, that she had no belief 

that such abuse had occurred. 

 Considered in light of the circumstances surrounding 

the ultimatum, Danovsky's conduct was an arbitrary abuse of 

government power. Based on her lack of an opinion regarding 

whether sexual abuse had occurred, we hold that she lacked 

objectively reasonable grounds to believe the child had been 

sexually abused or was in imminent danger of sexual abuse. 

Combined with the total absence of objective evidence which would 

support a belief that sexual abuse had occurred, we hold that 

Danovsky's conduct will certainly not support the grant of 

summary judgment in the Defendants’ favor. Because the Crofts 

did not cross-file for summary judgment, we, sitting as a court 

of review, must remand the cause to the district court for 

further proceedings.6 

 

 

6While Judge Becker joins in the preceding portions of the 

opinion, he is not prepared at this juncture to hold that 

Danovsky’s conduct violated the Crofts’ constitutional rights, or 

that, on remand, the Crofts are entitled to an automatic summary 

judgment on their claims, as the majority opinion seems to 

suggest. 
12

III. 

 We will reverse the district court's entry of summary 

judgment.7 

 Costs will be taxed against the Appellee. 

 

 

7The Crofts have also raised questions of fact, inter alia, 

 whether an unconstitutional custom or policy existed; whether 

the relevant final policy makers for WCCYS and the County 

consciously or deliberately enacted, or acquiesced in, the custom 

or policy at issue; and, whether the custom or policy caused the 

violation of the Crofts’ constitutional rights.