/rS IN TIIE UNITED STATES DISTRICT COURT 

/)V FOR TIIE EASTERN DISTRICT OF PENNSYLVANIA 

CHRISTOPHER J. WELLER : CIVIL ACTION-MEDICAL 

PROFESSIONAL LIABILITY ACTION 

Plaintiff 

NO. 05-2758 

v. 

Cheryl Ransom-Garner 

Commissioner, Philadelphia FI LED
 Dept. Human Services~

VALERIE JONES and JAN 1 7 2007 DEFENDER ASSOCIATION 

OF PHILADELPHIA 

Cy \~

Defendants 

MEMORANDUM OF LAW IN SUPPORT OF Pf,~TIFF,
 

CHRISTOPHER J. WELLER'S REPONSE TO DE'lfENDANT'S
 

MOTION FOR SUMMARY JUDGMENT
 

L PROCEDURALIFACTUAL STATEMENT OF THE CASE 

Plaintiff, Christopher Weller ("Christopher" or "Plaintiff"), was born Christopher 

Moon to Pearl and James Moon on May 15, 1985. Christopher was placed into legal 

custody ofthe Department ofHuman Services ("DRS") on July 31, 1985 because of 

neglect and possible abuse by his biological parents. On August 2, 1985, when 

Christopher was two and a halfmonths old, he was placed in the foster home ofWilliam 

and Carol Weller, with his three older siblings, having been declared legally dependent. 

Each ofChristopher's three siblings eventually returned to their biological parents, except 

for Christopher. 

Christopher remained in the loving care ofthe Weller's with limited and 

inconsistent visits with his natural family from August of 1985 until June of 1991. At that 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 1 of 37
point he was removed from the Weller's by the concerted action ofDefendant DHS and 

with the assistance ofDefendants Jones and Defender Association. During that period of 

time, the Weller's repeatedly expressed an interest in adopting Christopher. Defendant 

DHS agreed with the change in goal to adoption and formally acknowledged such in a 

January 13, 1989 Court filing. 

In February of 1991, the Weller's were relocated to Tennessee for job reasons 

associated with Mr. Weller. The Weller's desired to and were able to take Christopher 

with them after securing written consent form the Moon's and Defendant DHS. During 

the four months that the Weller's were in Tennessee, from February to June 1991, the 

Moon's never contacted Christopher or the Weller's. 

In May of 1991, the Weller's returned to Pennsylvania with the hope and 

expectation of adopting Christopher, but on July 8, 1991, at the insistence ofDefendant 

DHS the Court removed Christopher from the Weller's and placed him temporarily with 

the Moon's. Almost immediately, there was a report ofsexual abuse upon Christopher 

and at the recommendation of a Psychologist, Christopher's trial period with his parents 

was ended. However, instead ofbeing returned to the Weller's, Christopher was placed 

with an Aunt ofthe Moon's whom Christopher did not know. 

Thereafter, the Weller's filed a Petition to Intervene and with great pain, exhaustion 

and personal expense fought to have both their and Christopher's interest heard. During 

this time, the interests ofthe Plaintiffwere allegedly being represented by Defendants 

Jones and Defender Association, who aggressively fought the Weller's efforts to 

intervene and to allow themselves to be heard. Defendants Jones and Defender 

Association at no time acquiesced to the Weller's simple request to be heard officially in 

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the Court case which case quintessentially should have been one solely involving the 

best interest ofChristopher. Eventually, the Weller's were successful in being granted 

standing by the Court as amicus curiae. 

All three Defendants, inexplicably, in intentional bad faith and with no regard for 

the best interest ofChristopher, a minor child, failed to allow counsel for the Weller's 

access to numerous records ofDHS, including the psychological and psychiatric reports. 

Unremarkably, the Weller's counsel was not permitted access to the significant report of 

Dr. Eileen Sexton, who was believed to be employed by Defendant DHS and whose 

opinion and reports the Weller's desired the Court to hear. It is believed and averred that 

as ofthat time, Defendants Jones and Defender Association had done little, if any 

investigation into the file and had not considered the reports which recommended that 

custody remain with the Weller's. 

During November of 1991, Christopher had been referred to the Children's Crisis 

Center due to his misbehaving in school. There he was placed on Ritalin and Dr. Eileen 

Bazelon, a psychiatrist, was retained to evaluate Christopher's situation. Dr. Bazelon also 

had to fight for access to all of Christopher's records. Dr. Bazelon spoke with Dr. Sexton 

who reported that before Christopher was removed form the Weller's Christopher was 

cheerful, cooperative, well organized and expressed a clear desire to remain with the 

Weller's instead ofthe Moon's. By June 26, 1991, Dr. Sexton reported a marked change 

in Christopher where he was now angry, agitated, barely controllable and reported 

numerous accounts ofsexual abuse at the hands ofthe Moon family. 

Dr. Sexton's July 8, 1991 report stated that Christopher was depressed, withdrawn, 

sad, angry and lacking vitality and saying that he hated living with the Moon's and 

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wanted to return to the Weller's. It is believed that Dr. Sexton presented all these findings 

to the Defendants Jones and Defender Association and sent a report ofthe suspected child 

abuse to Defendant DHS, all ofwhich were either ignored or dismissed by all three 

Defendants. 

Similarly, Dr. Bazelon concluded in her January 14, 1992 report that Christopher 

had been abused by the Moon's and that Christopher had suffered and was continuing to 

suffer from post-traumatic stress disorder and depression. Dr. Bazelon recommended that 

it was urgently in Christopher's best interests to be returned to the Weller's and for the 

Moon family to have no further access to Christopher. Dr. Bazelon also expressed 

concern for possible permanent suffering for Christopher as a consequence ofthe 

emotional trauma he had experienced and was continuing to experience at the hands of 

the Moon's. 

In an addendum to her January, 1992 report, Dr. Bazelon confirmed that she had 

requested but was denied the opportunity to present all her findings to the Court, during 

the June 26, 1991 hearing. Dr. Bazelon was unable to tell the court about the abuse of 

Christopher by his Aunt even though all three Defendants were aware of her findings and 

opinions. See report and addendum attached as exhibit "A". Dr. Bazelon wrote another 

similar report reconfirming her opinion and prognosis regarding Christopher dated 

January 15, 1992. See report attached as exhibit "B". 

In January of 1992, Michael Churchwell, Esquire, ofthe Public Interest Law Center 

ofPhiladelphia, wrote to Defendant Defender Association and noted his concern for the 

glaring deficiencies in the work ofDefendant Jones and her intentional 

misrepresentations made to the Court during the Fall of 1991. Despite the internal review 

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by Defendant Defender Association, occasioned by Mr. Churchwell's letter, Defendant 

Defender Association, while acknowledging some errors in judgment, refused to remove 

themselves from the case and persisted in their resistance to the best interests of 

Christopher, their client. See exhibits "c" and "D". 

Finally, on April 14, 1992 after nearly a year of abuse occasioned by the actions of 

the Defendants, Christopher was returned to the Weller's in Tennessee by order ofJudge 

Sylvester, where he remains today. At present, Christopher has completed high school 

but does not have a driver's license or a job and has shown no interest in college. At the 

age of20, Christopher is believed to still suffer from the effects of post-traumatic stress 

disorder and the physical and emotional pain of his ordeal. It is therefore, believed that 

Christopher's suffering is permanent. Plaintiff now seeks to hold Defendants Jones and 

Defender Association liable for their negligence and misrepresentation associated with 

their complete failure to act in the best interest of a minor child, Christopher. 

n. ARGUMET AND LEGAL ANALYSIS 

A. Summary Judgment Standard 

Summary judgment is appropriate "ifthe pleadings, depositions, answers to 

Interrogatories, and admissions on file, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to a judgment as a matter of law." 

FRCP 56(c). In a motion for summary judgment, the moving party carries the burden to 

demonstrate the absence of any genuine issue ofmaterial fact. Goussis v. Kimball, 813 

F.Supp. 352,354 (E.D.Pa. 1993)~ citing. Celotex Corp v. Catrett, 477 U.S. 317,323, 106 

S.Ct. 2548,2553 (1986). 

A genuine issue ofmaterial fact exists when "the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty 

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Lobby, Inc., 477 U.S. 242,248,91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The 

substantive law will identify which facts are material. See id. When reviewing a motion 

for summary judgment, all reasonable doubts and inferences are in favor ofthe 

nonmoving party. Arnold Pontiac-GMC v. General Motors Corp., 700 F. Supp. 838, 840 

(W.o. Pa. 1988). 

Here, the motion is premature as the record has not been sufficiently established 

to aver or withstand such a motion. As a consequence ofsuch and given the current state 

of absolute immunity law, Defendants have not met their burden of establishing that there 

is no genuine issue ofmaterial fact. 

B.	 The Summary Judgment Motion Should be Denied as the Record is 

Insufficient to Aver or Oppose Such a Motion 

In Celotex the Supreme Court elaborated on the type of evidence that the 

nonmoving party is required to produce in order to withstand a motion for summary 

judgment. The Court stated that "Rule 56(e) permits a proper summary judgment motion 

to be opposed by any ofthe kinds of evidentiary materials listed in Rule 56(c), except the 

mere pleadings themselves, and it is from this list that one would normally expect the 

nonmoving party to make the showing to which we have referred [a genuine issue of 

material fact]". Celotex Com v. Catrett, 477 U.S. 317,323, 106 S.Ct. 2548,2553 (1986). 

Rule 56 (c) refers to pleadings, depositions, answers to interrogatories, admissions, and, 

if available, affidavits to aver or oppose a Summary Judgment motion. See FRCP 56(c). 

Here, Defendants seek Summary Judgment based on the common law doctrine of 

absolute immunity by attempting to create an analogy between Defendant Jones' role as a 

Child Advocate for Plaintiff and that of a guardian ad litem, who is entitled to absolute 

immunity for certain tasks. See Hughes v. Lynn E. Long, et aI., 242 F.3d 121, 127 (3d Cir 

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Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 6 of 37
2001)(internal citation omitted). Currently, the Third Circuit recognizes that a Guardian 

ad litem is entitled to absolute immunity when acting as an "integral part[] ofthe judicial 

process." Briscoe v. LaHue, 460 U.S. 325,335, 103 S.Ct. 1108 (1983). 

In a non-exhaustive list, the Third Circuit articulated certain acts that would fall 

within the purview of being integral, such as testifying in court, prosecuting custody or 

neglect petitions and making reports and recommendations to the court. Gardner v. 

Parson, 874 F.2d 131, 146 (3d Cir. 1989). The key is ifthe guardian ad litem is acting as 

a functional "arm or the court." Id. However, and most important to this matter, guardian 

ad litems are NOT granted blanket immunity for all their duties or acts. Id. at 145 

(emphasis added). Investigative or administrative acts are not granted absolute immunity. 

Ernst v. Child & Youth Services of Chester County, 108 F.3d 486,497, n.7 (3d Cir. 

1997). 

In Defendant's motion for Summary Judgment, Defendant states that discovery 

has been underway for a number ofmonths and that Plaintiff's interrogatories have been 

answered. However, the only discovery that has been completed are the interrogatories. 

Defendant further states that the role ofChild Advocate in dependency hearings in 

Philadelphia is fairly standard and as such the function ofDefendant Jones can be easily 

ascertained. WHERE, IN THE CURRENT RECORD, IS THE SUPPORT FOR THAT 

ASSERTION? However, all the exact roles ofDefendant Jones have not yet been 

ascertained but must be in order to find Defendant Jones immune for all her 

acts/omissions. Lastly, Defendant generally states that Defendant Jones functioned as an 

agent and arm ofthe court in investigating matters, reporting her findings and making 

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recommendations and as such should be entitled to absolute immunity but does not point 

to any specific acts or instances. 

This argument is faulty on at least two levels; first, it presumes that the three acts 

listed above were the only material acts ofDefendant Jones in this matter and second, it 

therefore argues that Defendant Jones should be grated a blanket immunity for all her acts 

and should thus be granted Summary Judgment. 

As articulated in the statement ofthe case above (Section I), Defendant Jones is 

believed to have performed many acts of negligence or failed to perform other necessary 

acts, which would equate to negligence that, at the least, raises a question as to whether 

defendant Jones would be immune under a guardian ad litem standard. For instance, the 

failure to respond to the multiple warnings by Dr. Bazelon, Dr. Sexton and Michael 

Churchwell as well as the failure to give Dr. Bazelon and counsel for the Weller's access 

to the necessary records, has no relation to the ''judicial process" nor transforms 

Defendant Jones into a "functional arm ofthe Court." 

It is further believed that many other acts/omissions of negligence, presently 

unknown to Plaintiff would be uncovered as discovery moved beyond its initial stages. 

Therefore, necessary discovery is still yet to be done by both parties to ascertain all the 

acts/omissions performed by Defendant Jones before any valid immunity argument can 

be raised. 

Defendants cite to Harris v. Lehigh County Office of Children & Youth Services, 

et aI., where the Eastern District ofPennsylvania denied a motion to dismiss on absolute 

immunity grounds and recommended further discovery because it did not yet know the 

exact functions performed by the attorney in order to see ifthe acts were an integral part 

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ofthe judicial process. 418 F. Supp.2d 643,650 (E.D. Pa. 2005). Defendants then try and 

contrast Harris to the matter at hand by stating that here discovery has been underway for 

a number ofmonths. Yet, Harris cannot be contrasted as it is almost the exact situation 

we have here. Yes, discovery has been underway for some months, but is only in the 

interrogatories phase and, as such, the facts by which to analyze Defendant Jones's exact 

functions in the matter have not yet been determined. 

As such, Defendants are unable to prove that there is no genuine issue as to any 

material fact based on the pleadings, depositions, answers to Interrogatories, and any 

admissions in order to sustain a judgment as a matter oflaw and therefore the motion 

should be denied. 

C. The Summary Judgment Motion Should be Denied as Defendants 

Improperly Seek to Extend Current Law in a Pre-Trial Motion 

Defendants articulate that Defendant Jones is entitled to absolute immunity for all 

her acts based on an analogy to the common law doctrine of absolute immunity for a 

guardian ad litem. While Defendant Jones's acts may have been in some way similar to 

that of a guardian ad litem her role in the matter was as a Child Advocate. She was acting 

as an attorney supposedly representing the best interests ofher client. As such, 

Defendant is improperly attempting to extend and change current common law in a 

pretrial motion. 

Summary judgment is appropriate where there is no genuine issue as to any 

material fact. FRCP 56(c). As articulated by the Supreme Court, a genuine issue of 

material fact exists when ''the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party." Anderson, 477 U.S. at 248. Here, it is well within the 

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sound discretion ofthe finder offact to determine that the acts of a Defendant Jones are 

not entitled to absolute immunity as a guardian ad litem or other. 

The decision whether or not to extend absolute immunity to different parties has 

produced a wide variety ofresults. The Supreme Court has provided absolute immunity 

for judges (Pierson v. Ray, 386 US. 547,87 S. Ct. 1213 (1967)), legislators (Tenney v. 

Brandhove, 341 US. 367,71 S. Ct. 783 (1951)), and prosecutors (Imblerv. Pachtman, 

424 US. 409, 96 S. Ct. 984 (1976)) for certain acts but not all acts. Futhermore, the Third 

Circuit has refused to grant absolute immunity for a social worker in his actions on behalf 

ofthe state in investigating and gathering information. Miller v. The City ofPhiladelphia, 

174 F.3d 368, 376 (3d. Cir 1999). As well, the Pennsylvania Supreme Court has refused 

to grant absolute immunity for expert witnesses in their negligence in formulating an 

opinion. LLMD ofMichigan. Inc. v. Swift, 559 Pa. 297,307, 740 A.2d 186 (1999). 

Therefore, the decisions on whether to grant or deny absolute immunity to a Child 

Advocate and if a Child Advocate is sufficiently analogous to a guardian ad litem are in 

no way material facts without genuine issue. A finder offact could easily and properly 

determine that immunity should not be extended to all the acts ofDefendant Jones. As 

such, Defendants are not trying to accurately interpret current common law, but rather 

extend the common law and such an act is inappropriate in a pretrial Summary Judgment 

motion and should therefore be denied. 

D.	 Defendant Jones Should not be Held Absolutely Immune From Suit 

Based on Guardian Ad Litem Immunity 

Defendants posit that Defendant Jones's role as Child Advocate in this matter is 

analogous to the role of a guardian ad litem. As such, Defendants argue that Defendant 

Jones is entitled to the same common law immunity as a guardian ad litem. While it is 

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true that some ofthe known act ofDefendant Jones and some ofthe "typical" acts ofa 

Child Advocate are similar to that of a guardian ad litem, the roles are not at all 

analogous and do not provide for a blanket immunity. 

Even ifthe role of a Child Advocate is seen as analogous to that of a guardian ad 

litem, absolute immunity would still not apply to all acts ofDefendant Jones, only those 

acts integral to the judicial process. Defendants try and paint a picture where the title of 

Child Advocate is equivalent to the title of guardian ad litem and as such Defendant 

Jones should be absolutely immune for all her acts. However, The Supreme Court has 

stated that in deciding whether to apply absolute immunity a Court should look at the 

function ofthe official not at the official's status or title. See Butz v. Economoy, 438 

U.S., 478, 508 (1978). As such, Defendant Jones could be called a Child Advocate, a 

guardian ad litem or anything else because the name is irrelevant and all that matters are 

the acts and functions performed by Defendant Jones. 

The statutorily dictated powers and duties of a guardian ad litem are: representing 

the best interest ofthe child~ meeting with the child on a regular basis~ review all relevant 

records and reports~ participate in all hearings in a degree adequate to represent the child~

conduct any necessary further investigation~ interview, examine and cross-examine 

witnesses~ stay updated on plans to modify custody or visitation ofthe child or any 

related proceedings~ make recommendations to the court relating to the appropriateness 

and safety ofthe child~ explain proceedings to the child~ and advise the court ofthe 

child's wishes. 42 Pa.C.S. § 6311(b)(1-9). 

Alternatively, the duties of a Child Advocate are to explain to the child, as best 

possible, all legal proceedings involving the child~ advise the judge about the child's 

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ability to understand and cooperate with any proceedings; and assist or secure assistance 

for the child and family in coping with the impact ofthe crime and legal proceedings. 42 

Pa.C.S. § 5983(a)(1-3). 

As for Defendant Jones, many of her acts are not known. Defendants state that 

Defendant Jones investigated matters, reported her findings and made recommendations 

but no dates, times or specific acts with specific parties are stated by Defendants or yet 

known by the plaintiff As alleged, Defendant Jones' acts or omissions involved 

investigating and reviewing expert reports relating to Plaintiff's custody and relaying the 

reports to the Court, represented any potential conflicts ofinterest to the Court, making 

sure the Court has all relevant records, reviewing records, talking to the Plaintiff client to 

determine the interest ofthe PlaintiffClient and representing the best interests ofthe 

Plaintiffclient. See Compi. at 18, 22,24,34,64. 

As stated above, a guardian ad litem is held absolutely immune for acting as a 

functional "arm ofthe court" in non-investigative and non-administrative acts. See Ernst, 

108 F.3d at 497, n.7; see also Gardner, 874 F.2d at 146. While guardians are given 

immunity for some acts, they are not granted immunity for the perfonnance of all duties 

and most importantly, are not granted immunity merely in their capacity as an advocate. 

Gardner, 874 F.2d at 145. A guardian ad litem is thus granted immunity based their 

prosecutorial function that is intimately associated with the judicial process. Id. (quoting 

Imbler v. Patchman, 424 U.S. 409,430-31,96 S. Ct. 984 (1976)). It is the prosecutoriallike function that dictates whether or not to cloak a particular person with absolute 

immunity. 

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In Ernst, the Third Circuit recognized a prosecutorial-like immunity for a social 

worker based on the need to allow social workers to use their judgment in making quick 

decisions, sometimes based on limited time and incomplete information as to on whether 

to initiate certain proceedings. Ernst, 108 F.3d at 496. Defendant Jones, however, was not 

required to make the type ofquick and discretionary decisions in the Plaintiff's custody 

matter that a prosecutor, guardian ad litem or child welfare worker would in their legal 

forums. 

Like any other private counsel, Defendant Jones was able to methodically and 

deliberately review evaluations and reports to determine the best interest ofthe Plaintiff 

Defendant Jones was not required to exercise her judgment under any constraints similar 

to a prosecutor or social worker. Defendant Jones was relatively free from time pressure 

and therefore would not have been required to make any "snap" judgments that could 

later be seen as questionable. Thus, in this sense, Defendant Jones in no way acted like a 

prosecutor, social worker or guardian ad litem. Further, one ofthe key acts which 

Plaintiffbelieves gives rise to liability on Jones part is her absolutely inexplicable 

insistence on continuously objecting to standing by the Wellers, the couple who had had 

the longest relationship with the child. 

The policy behind cloaking prosecutors with absolute immunity for certain acts is 

to benefit the public. It is to prevent prosecutors from being too cautious in intervening in 

matters out of fear of personal liability, thus weakening the criminal justice system. Id at 

494-95(discussing Imbler, 424 U.S. at 424-29). However, as related to Defendant Jones, 

no such public policy concerns are present. Defendant Jones did not have to make a 

similar decision on whether to enter the matter; she was already part ofthe matter when 

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her questionable acts took place. As such, cloaking Defendant Jones in absolute 

immunity would be no benefit to the public. Here, Defendant Jones' acts were more 

attune to a privately hired or court-appointed attorney, who is fully responsible for their 

own acts and receives no immunity for possible negligence in the representation of a 

client. The reasoning for such a difference in immunity between a prosecutor and a courtappointed attorney was articulated by the Supreme Court in Ferri v. Ackerman, which 

stated: 

There is, however, a marked difference between the nature of counsel's 

responsibilities and those of other officers of the court. As public 

servants, the prosecutor and the judge represent the interest of society 

as a whole. The conduct oftheir official duties may adversely affect a 

wide variety of different individuals, each of whom may be a potential 

source of future controversy. The societal interest in providing such 

public officials with the maximum ability to deal fearlessly and 

impartially with the public at large has long been recognized as an 

acceptable justification for official immunity. The point of immunity 

for such officials is to forestall an atmosphere of intimidation that 

would conflict with their resolve to perform their designated functions 

in a principled fashion. 

In contrast, the primary office performed by appointed counsel 

parallels the office of privately retained counsel. Although it is true 

that appointed counsel serves pursuant to statutory authorization and in 

furtherance ofthe federal interest in insuring effective representation 

of criminal defendants, his duty is not to the public at large, except in 

that general way. His principal responsibility is to serve the undivided 

interests of his client. Indeed, an indispensable element ofthe effective 

performance ofhis responsibilities is the ability to act independently of 

the Government and to oppose it in adversary litigation. The fear that 

an unsuccessful defense of a criminal charge will lead to a malpractice 

claim does not conflict with performance ofthat function. If anything, 

it provides the same incentive for appointed and retained counsel to 

perform that function competently. The primary rationale for granting 

immunity to judges, prosecutors, and other public officers does not 

apply to defense counsel sued for malpractice by his own client. 

444 U.S. 193,202-04 100 S. Ct. 402, 408-09 (1979) (emphasis added). 

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In this sense, Defendant Jones' role was far more in tune with a court appointed or 

privately hired attorney then a prosecutor. As such, Defendant Jones is in no way entitle 

to absolute immunity for all her acts regardless ofif her role of a child advocate is 

determined to be analogous to a guardian ad litem. Defendant Jones performed or failed 

to perform many investigative and administrative acts in her dealings with the Plaintiff, 

the Weller's and the doctors that are completely separate form any judicial function and 

are thus not entitled to immunity. Therefore, Defendants Summary Judgment motion is 

inappropriate and should be denied. 

E.	 Defendant Defender Association Should be Held Vicariously Liable 

for the Actions and Omissions of Negligence of Their Agent, 

Defendant Jones 

Defendants state that since Defendant Jones should be immune for all her acts as 

quasi-guardian ad litem, then her employer, the Defendant Association ofPhiladelphia 

cannot be held vicariously liable. It is a well established principle that traditional 

vicarious liability rules makes employers vicariously liable for acts of their agents or 

employees within the scope oftheir authority or employment, even ifthe employer did 

not authorize or did not know about the employee's acts. Meyer v. Holley, 537 U.S. 280, 

286, 123 S. Ct. 824, 829 (2003). 

Here, since Defendant Jones cannot be held absolutely immune from all her acts 

relating to the plaintiff, the Defendant Association ofPhiladelphia cannot escape possible 

vicarious liability from the acts oftheir employee, Defendant Jones. As such, partial 

summary judgment as to the vicarious liability ofthe Defendant Association of 

Philadelphia is inappropriate and should be denied. 

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Respectfully submitted, 

ORY G. STAGLIANO 

,.../ 

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Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 16 of 37
CERTIFICATE OF SERVICE 

I, GREGORY G. STAGLIANO, ESQUIRE, attorney for Plaintiff, Christopher Weller, 

hereby state that a true and correct copy of the foregoing Plaintiff's Response to Motion for 

Summary Judgment of Defendant, Valerie Jones, Esquire, and for Partial Summary Judgment 

as to the Defender Association of Philadelphia, was sent by first-class mail, postage prepaid, on 

the date set forth below, and was served upon the following individuals: 

Kimberly A. McCarthy, Esquire
 

Post & Schell, P.C.
 

1600 John F. Kennedy Blvd.
 

Philadelphia, PA 19103
 

Jeffrey S. Simons, Esquire
 

City of Philadelphia / Law Dept. FI LE u
 

One Parkway
 

1515 Arch Street
 

Philadelphia, PA 19102
 Icrl( 

Cy 1'\:lF 

Honorable J. Curtis Joyner 

U. S. Courthouse 

601 Market Street, Room 8613 

Philadelphia, PA 19106 

LAW OFFICES O~

,// 

/' 

// 

,-"," 

/ 

GUANO, ESQUIRE 

lntiff, Christopher Weller 

DATED: January 16, 2007 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 17 of 37
uVu ~IgIHX3:
 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 18 of 37
EILEEN A. BAZELON. M.D.
 

THE CAMBRIDGE. APT. 105
 

2967 SCHOOLHOUSE LANE
 

PHILADELPHIA. PENNSYLVANIA 1 g, 44
 

TELEPHONE 844·2333 

January 14, 1992 

Ms. Marjorie Greenfield 

Anderson & Greenfield 

1025 Penn Mutual Tower 

510 Walnut Street 

Philadelphia, PA 19106-3610 

Dear Ms. Greenfield: 

Pursuant to the court order of December 12, 1991, I spoke 

with Ms. Sandra Steiker and Dr. Eileen Sexton about Christopher 

Moon. The following report reflects my review of the clinical 

material and includes conclusions and recommendations based on 

that review. 

The facts in this case are well known so that I will 

summarize them briefly. Christopher was placed in foster care 

with the Weller family at age two months because of neglect and 

possible abuse by Pearl and James Moon, his biological parents. 

He remained with the Wellers until June of 1991 when his custody 

was thrown into question by the Wellers' move out of state and 

the refusal of his biological parents to relinquish him. Trial 

visitation with the Moon was arranged, but before it got beyond a 

weekend overnight visit, allegations of sexual abuse were brought 

against the Moons and the child was transferred to the home of 

his maternal aunt, Crystal Dufy, someone who had no previous 

relationship with the child. He remains with his aunt at the 

present time, has had no contact with the Wellers, and continues 

to see his biological family in supervised visitation. 

In June and July of 1991, Eileen Sexton, Ph.D., a 

psychologist with the Defender's Association evaluated 

Christopher in an attempt to determine with whom this child 

should live. In doing her evaluation, Dr. Sexton had no access 

to the file on the Moons: her only resource was the child 

himself. I am underlining this because most psychologists have 

access to background material in evaluating a child. Yet her not 

having this material makes her report more, rather than less 

valuable. 

Sandra Steiker, M.S.W., saw Christopher after his placement 

with Ms. Dufy in an effort to substantiate the allegation of 

sexual abuse. She has continued to see him weekly and has had 

access to the Moon family, Ms. Dufy, and Christopher's teacher. 

She could have called the Wellers to discuss the child but to my 

knowledge has not done so. 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 19 of 37
-2­

Eileen Sexton shared her clinical material with me, 

including Christopher's drawings. Ms. Steiker spoke with me for 

an extended period and sent me copies of her clinical notes. 

Both clinicians were extremely helpful and cooperative. 

I am also hoping to speak with a psychiatrist at the 

Children's Crisis Center who evaluated Christopher in November, 

1991 because he was having difficulties concentrating at school. 

Since I did not reach him by the time of this writing, I will 

send an additional letter after talking to him. 

Findings of Dr. Sexton: 

Dr. Sexton saw Christopher for the first time on June 7, 

1991, prior to his first overnight visit with the Moons. During 

that session, he was cheerful, cooperative, well-organized, and 

task oriented. He completed the tasks assigned to him without 

difficulty and with energy, vitality, and precocity. In short, 

he was at all times organized, well-behaved, and appropriate for 

a child his age. He clearly stated that he "felt bad about 

Pearl's decision" i.e. to have him live with her and he clearly 

indicated that he considered the Wellers' home his home. When he 

talked of moving to "Pearl's", he was frankly sad. "I want to 

live with my foster parents." 

He saw Dr. Sexton for the second time on June 12, 1991, 

following an overnight or weekend visit to the Moons. Carolee 

Weller accompanied him to the visit. Christopher quickly 

followed Dr. Sexton to her office and in response to her question 

"Did you have fun" (at the visit) he said, "I had no fun at 

Pearl's house. They touched me on my private parts." He then 

spontaneously produced a series of drawings.* 

I will summarize the content of the drawings since to 

understand my conclusions, one must appreciate the drawings. 

The first drawing was of Pearl*· who appears as a large 

ghostlike figure with a cigarette hanging from her lips. Her 

profile is turned away from the child who appears upside down in 

the drawing. A large hand reaches out to touch the child's 

genital area. In response to open-ended, "non-leading" 

questions, Christopher told Dr. Sexton that Pearl had touched his 

private parts. A "ghostbuster" symbol completed the drawing. 

*I urge the court to examine the drawings themselves as they are 

the most powerful statement of the events that Christopher, a six 

year old child could produce. 

**It is clearly labeled Pearl as the other drawings bear the
 

names of each family member.
 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 20 of 37
-3­

The next drawing was quite similar in style and theme. In 

this one Jimmy replaced Pearl as the ghostlike figure whose large 

hand reached out to touch the genitals of the upside down child 

on the left side of the page. Drawings of Timme and Jim Moon 

performing the same act followed, complete with name and a large 

"X"* and a ghostbuster symbol. CHristopher became angry and 

agitated as he drew. She asked about Steven~ he told her to draw 

Steven. Kevin, he said was not there. (In fact, Kevin was in 

Florida). He told Dr. Sexton, again spontaneously, that the 

members of his biological family had also put their fingers in 

his "doodoo".** Over Timme's name, Chris vehemently scribbled, 

saying "No, no." Christopher revealed that the Moons had 

videotaped the molestation. Because of the child's evident 

agitation, Dr. Sexton ended the session with Christopher. 

She then questioned Ms. Weller in an effort to determine the 

veracity of Chris' story. Ms. Weller described a profound change 

in Chris' behavior following the overnight: he did not give her 

a hug and kiss upon seeing her, as was his wont~ he became 

immediately demanding in ways he had not been before, and he 

became inconsolably hysterical in the car. Later that evening he 

told Ms. Weller that "he'd had no fun at Pearl's. They touched 

me on my private parts." Based on her conversation with Carolee 

Weller, Dr. Sexton felt confident that Ms. Weller had not "put 

Christ up to" these allegations of abuse by the Moons.··* She 

also confirmed with Kathy Melot, Chris' Concern social worker, 

that his behavior following the visit was different from usual 

and that Chris had said to her (Melot), "I have bad things to 

tell you, things you don't want to hear." 

Dr. Sexton saw Christopher twice more in June, the 17th and 

the 26th. She found him a much changed child from her first 

session with him on June 7th. In session three, he was angry, 

agitated, and barely controllable. He ran around the room, 

playing out a Ghostbuster fantasy. In his play, the Ghostbusters 

were corning in via the window "to get the bad ghosts, who were 

Jimmy, Timme, and Steven." He repeated that "everybody had 

touched his private parts and put their fingers in his "doodoo". 

In the play, he was counting on the Ghostbusters to save him from 

the bad people, the Moons. Christopher was frantic during much 

of the session~ he became so agitated that Dr. Sexton ended the 

session. 

*This represented No or wrong. 

**Christopher used this word to mean anus. 

***It is significant that Carolee Weller told Dr. Sexton that she 

did not believe Chris, that the story was incredible. This 

statement also attests to her lack of duplicity. 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 21 of 37
-4­

On June 26, 1991, Christopher arrived carrying various kinds 

of ghostbuster toys and equipment. He had obviously become a 

ghostbuster in order to protect himself. "I'm going to trap all 

those mean, bad people, I told you about," he whispered. He 

named the same "bad" people. Dr. Sexton then asked "Has anyone 

else touched you on your private parts." He responded, 

"Crystal." Dr. Sexton: "Who is she?"* Chris: "My aunt." 

Christopher then repeated that he wanted to live with the 

Wellers. "My name is Chris Weller. It used to be Moon, but not 

anymore." Christopher instructed Dr. Sexton to tell the judge 

that he wanted to live with the Wellers. He became increasingly 

angry and fearful of the Moons. Of Aunt Crystal, he said, "She 

is mean." 

Dr. Sexton presented her findings to Val Jones, the attorney 

for Child Advocate and Michael Lewis, CAU social worker. She 

also made a report of suspected child abuse to DHS. A copy of 

her extensive report was sent to DHS and to the court. An 

investigation of the abuse followed, but Christopher refused, as 

he has to this day, to talk about the abuse to anyone else: not 

to the physician who examined him, nor to the police or to DHS. 

It is noteworthy that Carolee Weller did not accompany him to 

any of the other investigatory interviews. This is of some 

importance as it is well known that young children often do not 

share charged material with strangers unless they are in the 

presence of someone who they know loves them. Also, Christopher 

may have been threatened with terrible punishment if he told or 

he may have shutdown because no one listened. 

Dr. Sexton saw Christopher one last time, on July 8, 1991, 

after he had been placed with Ms. Dufy. She found him depressed, 

withdrawn, sad, angry, lacking in vitality. Chris was 

inconsolable, and said of the Dufys he said, "I hate being 

there." He told her repeatedly he wanted to return to Tennessee 

to the Wellers, he wanted to be as far away from the Moons as 

possible. He counted the days until the next court hearing when 

he might tell the judge he wanted to go home to the Wellers. He 

refused to leave her office at the end of the session, and had to 

be carried out. 

Crystal Dufy insisted on talking to Dr. Sexton. She related 

that Christopher developed a severe headache, nausea, and 

vomiting after he heard that Carolee Weller had returned to 

Tennessee. 

*Eileen Sexton, having no background information, did not know
 

who Crystal was.
 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 22 of 37
-5­

Dr. Sexton remains convinced that Pearl, James, Jimmy, 

Timme, and Steven Moon all abused Christopher during a weekend or 

overnight visit between June 6th and June 12th. She is also 

convinced that Crystal Dufy molested Christopher although she 

does not know when this occurred. Her argument is and there is 

no reason to doubt it, that Christopher was accurate and 

consistent in his story, that he told it in childish language, 

and that he did so unprompted by her. His behavior changed, and 

he developed an elaborate fantasy based on the movie Ghostbusters 

to deal with the trauma. 

Ms. Steiker's Report 

In contrast, Christopher has never talked of the abuse to 

Ms. Steiker despite her persistent questions. In her office, he 

is agitated, disorganized, uncooperative, and guarded. He is 

often preoccupied with fantasy and speaks in detail of ghosts of 

whom he is quite afraid. He has told her that he loves Carolee 

Weller "most of anyone in the world," but also has refused to 

tell her with whom he would like to live. Ms. Steiker 

complained repeatedly to me that the child would not talk to her 

and that she, therefore, could not make a recommendation. She 

has observed him with his biological family on more than one 

occasion, and cannot herself make much of Chris' behavior with 

them. She is put off by Pearl Moon's evasive answers to 

questions about the reasons for Christopher's long placement in 

foster care. She finds Ms. Dufy an adequate caretaker. Ms. Dufy 

has revealed to her that Chris has been behaving badly at her 

home. Chris' inability to focus and agitation at school resulted 

in a referral to a psychiatrist who labelled Chris as attention 

deficit disorder, and prescribed a trial of Ritalin. 

Christopher's behavior in Ms. Steiker's office was so 

agitated and frantic and she could make so little of the session 

that she called in an art therapist to assist her with the child. 

Since that time, Christopher has drawn pictures but has refused 

to talk to the therapist. 

I had one other exchange with Ms. Steiker that I think is 

revealing. The Wellers had Christmas presents North for 

Christopher and I asked if Ms. Steiker would give them to him. 

She refused saying that she felt it would disturb the Moon family 

to have Christopher receive presents from the Wellers. 

Clinical Impressions 

It is true that I have never seen Christopher; however, 

have had access to extensive clinical material on him and spoken 

at length with Dr. Sexton and Ms. Steiker. 

Based on that review, I am, within a reasonable degree of 

medical certainty, convinced that Christopher was sexually abused 

by Pearl, James, Jimmy, Timmy and Steven Moon. I also think he 

was sexually abused by Crystal Dufy on some occasion. The child 

I 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 23 of 37
-6­

has said the abuse was videotaped, and I think an effort should 

be made to look for a tape. Chris' drawings stand on their own; 

they are powerful, consistent, and filled with appropriate 

emotional content. He even includes the ghostbuster symbol, an 

amulet or charm that he hopes will vanquish his enemies and 

protect him from destruction.* When he drew pictures, he was 

understandably angry and agitated as he was recounting a very 

traumatic event. 

The change in his behavior from June 5, 1991 to June 12, 

1991, also validates his story of abuse. During his first 

session with Eileen Sexton, he was a healthy, well-developed, 

well-organized child, in other words, normal with excellent 

trust and a good ability to relate to the examiner. Since then 

he has become agitated, angry, disorganized, frantic, given over 

to fantasy, and unable to cooperate. He cannot function at 

school; someone thinks he even has attention deficit disorder. 

None of this lack of functioning or malfunctioning was present 

before June 12, 1991. Ms. Steiker is seeing a child who is 

suffering Post-Traumatic Stress Disorder and is responding as any 

healthy person would to the extreme stresses of sexual 

molestation and loss of his psychological parents. Both stresses 

and they are equally important, combine to produce a child who 

now looks quite disturbed. That he refused to tell his story to 

DHS, the police and Ms. Steiker is immaterial. It is quite 

common for a child to "clam up" either because he has been 

threatened with retaliation or because he is overwhelmed with 

fear and dismay. He also may not trust anyone to tell his tales. 

Remember that he told his story when accompanied by Carolee 

Weller, the person he loves "best in all the world." He 

developed great rapport with Dr. Sexton, something that has not, 

by her own admission, occurred with ms. Steiker. He may not 

trust Ms. Steiker even though he has met with her many times, as 

he may feel that she is not on his side, or he may simply be 

unable to talk to her. Frankly, I do not know that I would trust 

Ms. Steiker if I were a child since she does not seem to know the 

cardinal rule of child therapy: very young children do not talk 

very often and they do not respond usually to persistent, 

repetitive questioning. I know that Ms. Steiker sees herself as 

an expert in child abuse, but I do not know if she has had much 

experience in treating very young children. In addition, 

Christopher may have picked up on her bias, or he may have been 

threatened by the Moons or Ms. Dufy with severe punishment if he 

told. 

*In the movie Ghostbusters, a team goes out to rid the city of
 

frightening evil ghosts. The Moons appear as the ghosts he is
 

trying to evade and destroy.
 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 24 of 37
-7­

I also feel strongly that Christopher should return 

immediately to the Wellers. That is more important than anything 

else that could happen. He will need therapy for his posttraumatic stress disorder, but that is secondary to his need for 

reunion with his psychological parents, the Wellers. If he is 

not returned to them, I fear he will be permanently damaged 

psychologically and suffer a serious depression of childhood or 

even a conduct disorder. With return, I think he can make a 

good recovery as he is well endowed, and was a healthy child 

prior to June 12, 1991. I saw nothing in the record to make me 

think that he was anything but a healthy, normal child 

psychologically while in the Wellers' care.* 

I do not feel that the Moon family or Crystal Dufy should 

ever have any access to Christopher as the chances for repeat 

abuse are excellent unless they as a family really respond to 

treatment. I am not sanguine about their ever responding to 

treatment as many efforts have been made to help them in the past 

without success. Some people are, unfortunately, irredeemable. 

I also wonder whether they have abused their other children. 

Investigation of this possibility is very important. I do not 

believe that this child should ever be placed with Ms. Dufy again 

as I strongly suspect that she also abused him. I also cannot 

believe that he could be safe in her house, as it is likely that 

she is in league, and overly identified with her twin sister, 

Pearl Moon. I do not believe she could or would deny access to 

the Moons, and being in their presence would be traumatic to this 

child, as she probably behaved in a similar way. 

In addition, Christopher has told Dr. Sexton repeatedly that 

he does not like her and does not like living with her. He also 

has begged consistently that he be returned to the Wellers. His 

inability to voice any consistent or understandable opinion to 

Ms. Steiker is not significant. I must attribute this to his 

lack of trust of Ms. Steiker, the Moons, and Crystal Dufy and his 

fear of all of them. 

Summary: 

I recommend strongly that the court return Christopher to 

the Wellers immediately and that he be placed in treatment for 

his evid~nt post-traumatic stress disorder and depression. The 

treatment should take place in Tennessee and involve the Wellers. 

I do not think he should be forced to see the Moons or
 

Crystal Dufy again as I think visitation would only reopen the
 

wound that this trauma has created. With luck, psychotherapy,
 

and most important, the good care of the Wellers, I have every
 

*Social work case notes confirm this as they confirm his having
 

bonded to the Wellers not the Moons.
 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 25 of 37
-8­

reason to think this child will recover. If he does not return to 

the Wellers, I fear that he will be permanently and sadly 

affected. 

I am grateful to have played a part in this case. 

Sincerely, 

E~~/~~lA{o

Eileen Bazelon, M.D. 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 26 of 37
-9­

Addendum: 

Eileen Sexton was never allowed to present all of her 

findings to the court. She presented a five minute summary of 

her report on June 26, 1991. She was never called again despite 

the fact that she asked repeatedly to testify. She was not able 

to tell the judge that Christopher had said that Crystal Dufy had 

molested him. She sent copies of her report to The Honorable 

Esther Sylvester, DHS, and Val Jones. She told Val Jones and 

Michael Lewis of her findings. No one ever contacted her in 

response to the report. 

(1/ /1 .. /-"!-~ ,/ /~y-&r- l'~

Eileen Bazelon, M.D. 

EB/dfw 

1113/92 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 27 of 37
uau ~IaIHX3
 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 28 of 37
J EILEEN A. BAZELON. M.D. 

THE C"'MBRIDGE....PT. 105 

2967 SCHOOLHOUSE L"'NE 

PHIL...DELPHI.... PENNSYLV...NI... 19144 

TELEPHONE 844·2333 

Janua~y 15, 1992 

Ms. Majorie Greenfield 

Anderson & Greenfield
 

1025 Penn Mutual Towe~
 

510 Walnut Street
 

Philadelphia, PA 19106-3610 

Dear Ms. Greenfield: 

I am writing this in response to your question about what my
 

recommendation would be fo~ Ch~istopher Moon's disposition even if he had
 

not been abused by members of his biological family.
 

I feel strongly that Chr.istophe~ should ~etu~n to the Welle~s as they 

are his psychological parents. In his own six year old way, he has made 

abundantly clear to Dr. Sexton that he loves them, wants to live with them, 

that they, to him, a~e his parents rather than the Moons. He stated that he 

was changing his name to Chris Weller. He begged repeatedly over the course 

of several interviews to go back to them. 

In contrast, he expressed only fear and anger towards the Moons. He 

never asked to live with them nor did he say he did live with them. He 

never expressed any affection towa~d them o~ said they cared about him. 

That statement could also be made of Crystal Duffy whom he characterized as 

"mean", and said, only "I hate being there." 

If Christopher is not returned to the Wellers, he will suffer posttraumatic stress disorder and a se~ious depression of childhood, f~om which 

he probably will not recover, or at the least, be will be permanently 

damaged. 

My conviction that the Moons and Ms. Duffy have abused him sexually 

only strengthens my conviction that he should return to the Wellers. The 

underlying issue is that Christopher is bonded to his foster family; to him, 

they are his only family. 

Please call me is you have further questions. 

Since~ely,

iJL_)"~JL~1i-0 

Eileen Bazelon, M.D. 

RECEIVED JAN 16 1.QQ? 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 29 of 37
u3u LIRIHX3
 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 30 of 37
,\ ' \ \ • PUI :NTEREST LAW CENTER OF PHILADELPHIA MICHAF', CHURCHILL \\"\-\ CHIEF CCJUNSEl " 

JEROME BALTER 

KAREN L BLACK 

THOMAS K. GI LHOOL 

JUDITH 

LISA 

FRANK 

MI LlE 

J. 

A. 

LASKI 

GRAN 

TT RAU 125 S. 9th 

ICOD~ ST" SUITE 700, PHILA" PA 19107 215-627-7100 

JOHN P. STEVENS III 

DIRECTOR OF DEVELOPMENT EDMUND B, SPAETH, JR. EDWIN D, WOLF 

CHAIRMAN OF THE BOARD EXECUTIVE DIRECTOR 

1974-1976 

HAND DELIVER 

February 13, 1992 

Ellen Greenlee 

The Defender Association of Pennsylvania 

121 North Broad street 

Philadelphia, PA 19107 

Dear Ellen: 

I am writing again because I have had no reply about some of 

the important issues I raised in my last letter. I want to make 

clear that I regard the actions of one of your attorneys as one of 

the most serious breaches of professional responsibility that I 

have seen and I believe it raises serious issues not only about 

the ethics of the attorney but about training and supervision. 

First, Bill Norvell did call to tell me that because of a 

conflict within the office about what position to take, the 

Defender was withdrawing as the child's counsel. Subsequently my 

co-counsel was told the Defender's office did not want to have to 

cross-examine its own expert, Dr. Sexton. When Dr. Sexton (who was 

not told about the January 29th hearing until January 27th) was not 

called to testify, Ms. Jones decided she could continue to 

participate and attempt to prevent Christopher from being reunited 

with his long-term (from 2 months old to 6 years old) foster 

parents. Ms. Jones continued to take that position even after 

hearing the testimony of Dr. Bazelon as to the damage and injury 

to the child. 

I must say I don't understand what lawyers are doing in 

deciding the factual issue of a child's needs when they reject 

their own experts statements and those of the only other experts 

consulted. Are Ms. Jones and Mr. Norvell that much more 

knowledgeable than Drs. Sexton and Bazelon? Are they relying on 

anyone other than themselves? 

This is not a small matter because either Ms. Jones and Mr. 

Norvell have concluded factually that their client has not been 

injured by the events of this year, or they regard the injury as 

legally not determinative of what should happen to him. Since I 

think we would both agree that if the child is being injured by 

what is happening it is the Defender's duty to persuade the Court 

not to allow it -- and since Ms. Jones and Mr. Norvell have not 

r-"~ r " '.. '!~~~l:'; '," 1,-' :; '" ," '" "' ,~ '. 

AFFILIATED WITH LAWYERS COMMITIEE FOR CIVIL RIGHTS UNDER LAW 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 31 of 37
PUBLIC INTEREST lAW CENTER OF I-'HlLAUt:Ll-'t 

Ellen Greenlee 

February 13, 1992 

Page 2 

done that -- I have to conclude they believe he was not being 

injured. Again, I must ask, on what evidence? 

But that is secondary to the breaches of responsibility to the 

child and to the Court which occurred: 

1. Ms. Jones has continually misrepresented Dr. Sexton's 

position. Dr. Sexton asked to testify on July 8th and Ms. Jones 

told her she could not. She continued to state her desire to 

testify and Ms. Jones told the Court repeatedly that she did not 

wish to testify and had "nothing more to say". She repeated this 

again during the last week of January. It is utterly untrue, as 

demonstrated by the fact that she also stated that she did not want 

to be in the position of having to cross-examine her own expert. 

Presumably Dr. Sexton wanted to say things different from what the 

Court had already heard and what Ms. Jones wanted the Court to 

know, otherwise why would it have been necessary to cross-examine 

her? Ms. Jones represented it was "all in Dr. Sexton's report" but 

in fact Dr. Bazelon testified about other information not included 

in the report, for example how Christopher clung to her secretary 

and did not want to leave the office with his aunt. 

2. Ms. Jones did everything she could to deny Dr. Bazelon 

access to Dr. Sexton and to Dr. Sexton's notes. Was this 

considered to be in the best interest of the child? Or was this 

a ploy so that evidence would not be available to the Court 

appointed expert? Surely she knew that they contradicted her own 

statements. 

, 

3. Although Judge Sylvester told Ms. Jones in December that 

she wanted Dr. Sexton to testify and although Ms. Jones asserted 

Dr. Bazelon could not testify until Dr. Sexton testified as to the 

circumstances of the visits and drawings, Ms. Jones never notified 

Dr. Sexton of the January 29th hearing until two days before. The 

date of the hearing had been set in December. 

4. Ms. Jones never informed the Court at the December 

hearing that Christopher's school had referred him to The 

Children's Crisis Treatment Center because of the severity of his 

behavior problems and never revealed the existence of a 

psychological report or of the treatment. Ms. Jones permitted 

witnesses who knew of this situation to testify that Christopher 

was improving and adjusting when she and they had access to the 

information demonstrating that it was not true. She made no 

attempt to ask any witness who should have known about this 

information about it. She then sought to deny Dr. Bazelon access 

to these reports. Dr. Bazelon testified that this information was 

important in her assessment of the child. 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 32 of 37
PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 

Ellen Greenlee 

February 13, 1992 

Page 3 

5. The therapist, Ms. Sandra Steiker, had notes which 

indicated Christopher's continual requests to go back to Tennessee 

and his foster parents. She didn't report this and Ms. Jones did 

not ask about it -- either because she did not want to bring this 

out or because she had not examined the notes and was not prepared 

to cross-examine the therapist on behalf of her client. 

No matter what view an attorney may have as to the standing 

of foster families, I cannot imagine how it excuses such conduct. 

It is not for me "CO speculate why this occurred and why Mr. Norvell 

permitted it to continue, but I believe it is my obligation to 

bring it to your attention and yours to find out why it happened 

and how to prevent its reoccurrence. I have not determined whether 

this requires a referral to the disciplinary board. suppression 

of evidence of this sort is particularly grave when the client, a 

child, has no effective say in directly controlling his attorney 

or making his desires known except through evidence permitted by 

his attorney. The attorney's obligation to have all information 

presented to the Court is compounded because the law makes 

information about the client confidential in order to protect the 

client; here the attorney actively used that confidentiality as a 

way not of protecting her client but to suppress admissible and 

highly relevant evidence about that client's wishes and needs from 

reaching the Court. 

Finally, I would like to remind you that this is the second 

time that I know of in which your office has failed to understand 

and therefore to vigorously act to protect an infant's attachment 

to psychological parents. I had hoped after the first instance 

some discussion and training would occur. The first time there was 

no question that there was a difference in jUdgment, albeit without 

any attempt by the unit to consult any professionals. This second 

time is more upsetting because not only does it involve the same 

problem of not recognizing a child's needs but adds the element of 

ignoring professional advice and deliberate deception and 

hostility. And then to make it worse, once the child made 

allegations (in a manner which all three "experts" consulted -- Dr. 

Bazelon, Dr. Sexton and Ms. Steiker -- believed were true) of 

sexual attacks by three members of his natural family your office 

continued to support unsupervised visits with those family members 

and an eventual return home. It appears to me there are 

substantial training needs in these areas which I would be glad to 

discuss with you. 

Because of the seriousness of these matters and the inadequate 

response by Mr. Norvell last time, I would suggest that you speak 

personally to Dr. Sexton. I am not familiar with what procedures 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 33 of 37
PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 

Ellen Greenlee 

February 13, 1992 

page 4 

your office utilizes in conducting impartial investigations to 

examine conduct of attorneys but this matter goes far beyond any 

issue of whether I disagree with Ms. Jones on what is best for a 

particular client but to the way the child advocate unit attorneys 

conduct their business, and the nature of their obligation to 

client and court. 

I am not copying Ms. Jones or Mr. Norvell but will leave it 

to you as to how you wish to keep them informed. I am available 

to meet with you to discuss this matter in person if you wish. 

I am sorry to have to renew this matter and I await your reply 

as to how you will proceed. 

Sincerely, 

. 

~hurchill MC:lr 

cc:	 Marjorie E. Greenfield, Esquire
 

Edmund B. Spaeth, Jr., Esquire
 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 34 of 37
uau LIHIHX:tl
 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 35 of 37
. Ctn/LP-"" , 

DEFENDER ASSOCIATION
 

OF PHILADELPHIA
 

eft: {uc&~

121 NORTI; BROAD STREET ELLEN T. GREENLEE 

PHILADELPHIA. PA. 19107·1913 DEFENDER 

(215) 568·3190 

FAX NO. (215) 557·5004 

March 13, 1992 

Michael Churchill, Esquire 

Chief Counsel 

PILCOP
 

125 S. 9th Street
 

Suite 700
 

Philadelphia, PA 19107
 

RE: CHRISTOPHER MOON 

Dear Mike: 

I write in response to your letters of January 22, 1992 and 

February 13, 1992 in which you raise issues regarding the representation of Christopher by our Child Advocacy Unit. 

I have spent considerable time meeting individually and 

jointly with Bill Norvell, Shawn Lacy, Val Jones, Eileen Sexton 

and Michael Lewis. During the course of these meetings we have 

identified and addressed many issues including: the law as viewed 

from the perspectives of the child, the natural parents and the 

foster parents; the child's welfare with respect to psychological 

bonding and separation trauma; the respective roles of child advocate attorneys and child advocate social workers; and the 

weight to be given an expert's opinion. Additionally, I have reviewed notes of testimony, reports by Dr. Sexton and by Dr. 

Bazelon, and the history of Christopher's case. 

I would like to preface my comments by stating that 

Christopher's life-long involvement with the dependency system 

presents an extremely complicated factual situation replete with 

both legal and ethical issues. 

In looking at the tortuous path Christopher has traveled 

just since June 26, 1991, it is apparent that the matter could 

have been handled in a manner more consistent with Christopher's 

needs. With the benefit of hindsight, it is safe to say that 

Christopher should not have been suddenly removed from the 

Wellers and placed with his aunt. Following his placement with 

Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 36 of 37
Michael Churchill, Esquire 

March 13, 1992 

p. 2 

his aunt, it does appear that Val Jones chose to rely on the reports of Sandra Steiker, the child's therapist, and did not rely 

on Dr. Sexton's reports. Likewise, Judge Sylvester apparently 

did not rely on Dr. Sexton's reports. I am satisfied, however, 

from my investigation, that Ms. Jones did not withhold information from the court. I am equally satisfied that Ms. Jones did 

not misrepresent Dr. Sexton's position to the court or attempt to 

prevent Dr. Sexton from testifying. My review of the notes of 

testimony, and my conversations with Dr. Sexton support this position. 

My greatest concern regarding the developments of 

Christopher's case is that, perhaps, the welfare of the child was 

not given the attention and weight that it merited. It may well 

be that there was too much involvement in other less important 

issues, and too much pointless debate over the adult concepts of 

the rights of biological parents versus those of foster parents. 

I have taken actions to ensure for the future that this will not 

happen again. 

Sincerely, 

ELLEN T. GREENLEE 

Defender 

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Case 2:05-cv-02758-JCJ Document 35 Filed 01/17/07 Page 37 of 37