NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

No. 09-4178 

____________ 

DAVID T. BREAKWELL; CHRISTINE A. BREAKWELL, 

 Appellants 

v. 

ALLEGHENY COUNTY DEPARTEMENT OF HUMAN SERVICES, OFFICE OF 

CHILDREN, YOUTH & FAMILY SERVICES; ALEXIS ANN SAMULSKI; LINDA 

DEDOMINICIS; TERA TERLECKI in their individual capacities 

____________ 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. No. 08-cv-00389) 

District Judge: Honorable Nora B. Fischer 

____________ 

Submitted Under Third Circuit LAR 34.1(a) 

October 19, 2010 

Before: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges. 

(Filed: October 22, 2010) 

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OPINION OF THE COURT 

____________ 

HARDIMAN, Circuit Judge. 

David and Christine Breakwell appeal the District Court’s grant of summary 

judgment in favor of Allegheny County, an Assistant County Solicitor, and two 
2 

employees of the County’s Office of Children, Youth, and Families (CYF). We will 

affirm. 

I.

Because we write for the parties, we recount only the essential facts and we do so, 

as we must, in the light most favorable to the Breakwells. 

The Breakwells are F.B.’s paternal grandparents and have had physical custody of 

her since October 15, 2005. On December 14, 2005, following the arrests of both of 

F.B.’s parents, Judge Kim Berkeley Clark entered an emergency shelter order granting 

the Breakwells temporary custody of F.B. and suspending visitations between F.B. and 

her parents. On January 27, 2006, CYF attorney Alexis Samulski filed an Amended 

Petition for Dependency on behalf of F.B. and her brother, as well as their two halfsiblings. 

Judge Clark dismissed the dependency petition on May 22, 2006, concluding that 

because the Breakwells stood in loco parentis to F.B., she was not a “dependent” of the 

County. On appeal, the Pennsylvania Superior Court reversed, holding that Judge Clark 

“erred in dismissing appellant’s dependency petition based on its finding that appellants 

stood in loco parentis to the subject child.” The Breakwells were awarded permanent 

custody of F.B. by the Court of Common Pleas of Allegheny County on June 5, 2008. 

Before the Breakwells were awarded permanent custody, CYF caseworker Tara 

Terlecki and her supervisor, Linda DeDominicis, visited the Breakwell residence four 
3 

ed 

sion of F.B. 

times. During one of those visits on July 19, 2006, DeDominicis “had her hand on the 

door and kind of pulled to step in” before the Breakwells denied DeDominicis and 

Terlecki entry into their home. The Breakwells also allege that CYF threatened to 

remove F.B. from their home if they did not reinstitute visitation between F.B. and her 

mother, a directive which would have violated Judge Clark’s emergency shelter order 

requiring prior court approval for any such visits. 

The Breakwells sued under 42 U.S.C. § 1983, claiming that Terlecki, 

DeDominicis, Samulski, and Allegheny County violated their First, Fourth, and 

Fourteenth Amendment rights. The gravamen of the Breakwells’ claim is 

straightforward: once they took physical custody of F.B. pursuant to a family 

agreement,1 they stood in loco parentis to her, which forever precluded CYF from 

treating F.B. as a “dependent” of the County. The Breakwells argue that CYF violat

their rights to privacy, family integrity, and substantive due process by conducting regular

home visits, insisting upon visitations, and initiating dependency hearings absent any 

allegation of unfitness in their care or supervi

The parties filed cross-motions for summary judgment and the Magistrate Judge 

issued a Report and Recommendation in favor of the County Defendants. The 

Breakwells timely objected, but the District Court adopted the findings of the Magistrate 
4 

 

Judge and held: (1) Terlecki, DeDominicis, and Samulski were protected by absolute and 

qualified immunity; (2) Allegheny County committed no constitutional violation by 

failing to train employees on the rights of in loco parentis custodians; and (3) the RookerFeldman doctrine required that it abstain from reviewing the Superior Court’s decision 

reversing Judge Clark’s holding that in loco parentis status is determinative in 

dependency proceedings. 

II. 

The District Court found that because Terlecki, DeDominicis, and Samulski 

(collectively, the Individual Defendants) were acting in a “prosecutorial role” in 

instituting dependency proceedings on behalf of F.B., they were absolutely immune from 

liability. The Breakwells claim this was error because they themselves were not the 

subjects of the dependency proceeding. Even if the Individual Defendants were acting in 

a prosecutorial role in initiating dependency proceedings, the Breakwells contend the 

Individual Defendants were acting outside of that role when they failed to abide by court 

orders and when they attempted to forcibly enter the Breakwells’ home.

“[T]he Supreme Court has consistently held that [42 U.S.C. § 1983] did not 

abolish long-standing common law immunities from civil suits.” Ernst v. Child & Youth 

Servs. of Chester Cnty., 108 F.3d 486, 493 (3d Cir. 1997) (citing Burns v. Reed, 500 U.S. 

1

 It is unclear whether F.B.’s biological mother assented to the custodial 

arrangement. Viewing the record in the light most favorable to the Breakwells, we 
5 

 

478, 484 (1991)). In Ernst, we held that social workers are “entitled to absolute immunity 

for their actions in petitioning and in formulating and making recommendations to the 

state court because those actions are analogous to functions performed by state 

prosecutors, who were immune from suit at common law.” 108 F.3d at 493. But we do 

not “accord absolute immunity to ‘investigative or administrative’ actions taken by child 

welfare workers outside the context of a judicial proceeding.” Ernst, 108 F.3d at 497 n.7. 

The functions performed by child welfare workers in initiating dependency 

proceedings are analogous to those that prosecutors perform. Just as a prosecutor has 

absolute immunity for conduct “intimately associated with the judicial phase of the 

criminal process,” Imbler v. Pachtman, 424 U.S. 409, 430 (1976), so too are caseworkers 

and CYF attorneys immune when initiating dependency actions. Ernst, 108 F.3d at 495. 

Because the Breakwells’ claims against attorney Samulski are based solely on her actions 

as counsel for CYF during the dependency proceedings, we will affirm the District 

Court’s summary judgment in favor of Samulski on all of the Breakwells’ claims against 

her. 

III. 

As for Terlecki and DeDominicis, we agree with the Breakwells that these CYF 

employees are not absolutely immune under Ernst because they acted outside the scope of 

the judicial process during home visits and while supervising visitations between F.B. and 

assume that both biological parents consented to the arrangement. 
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her biological mother. We therefore turn to the question of whether Terlecki and 

DeDominicis are entitled to qualified immunity. 

The doctrine of qualified immunity protects government officials “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.” Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether Terlecki and DeDominicis 

are entitled to qualified immunity, we must first determine if the Breakwells have 

adequately alleged a violation of a constitutional or statutory right that was clearly 

established at the time of their alleged conduct. Saucier v. Katz, 533 U.S. 194, 201 

(2001). “The relevant, dispositive inquiry in determining whether a right is clearly 

established is whether it would be clear to a reasonable officer that his conduct was 

unlawful in the situation he confronted.” Id. at 202. Because this inquiry “must be 

undertaken in light of the specific context of the case,” a court must consider the state of 

the existing law at the time of the alleged violation. See Paff v. Kaltenbach, 204 F.3d 

425, 431 (3d Cir. 2000). 

The Breakwells allege three constitutional violations: (1) CYF’s interference in the 

Breakwells’ in loco parentis arrangement violated their First Amendment rights to 

familial association and integrity; (2) Terlecki’s and DeDominicis’s regular inspections of 

the Breakwells’ home (and on one occasion, an attempted unconsented-to intrusion) 

violated their Fourth Amendment rights to be free from unreasonable searches and 
7 

seizures; and (3) the cumulative actions of Terlecki and DeDominicis, including threats to 

remove F.B. if the Breakwells did not continue visitations with F.B.’s mother, violated 

their Fourteenth Amendment rights to privacy, to maintaining custody of F.B., to familial 

association and integrity, and to substantive due process. We address each argument in 

turn. 

A. 

The Breakwells contend that Pennsylvania state law treats an in loco parentis 

relationship “exactly the same as [the relationship] between parent and child.” T.B. v. 

L.R.M., 786 A.2d 913 (Pa. 2001). Like natural parents, the Breakwells claim to have a 

fundamental liberty interest in “the care, custody, and control” of F.B., an interest which 

may not be compromised absent “some reasonable and articulable evidence giving rise to 

a reasonable suspicion that a child has been abused or is in imminent danger of abuse.” 

Croft v. Westmoreland Cnty. Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 

1997). 

We have never held that those standing in loco parentis to a child have a 

constitutional right to the continued care and supervision of that child. The Breakwells 

cite Moore v. City of E. Cleveland for the proposition that the “ambit of constitutional 

protection accorded the family extends beyond the relationship of birth parents and 

child.” 431 U.S. 494, 499 (1977). Although Moore recognizes family members’ 

fundamental interest in living in the same household, it does not guarantee an extended 
8 

 

family member an award of custody whenever a child’s natural parents are subject to an 

investigation for allegations of abuse or neglect. See Croft, 103 F.3d at 1125 (holding 

that even for natural parents, the right to custody is not “absolute” and must be balanced 

against “the compelling interests of the state in protecting children from abuse”). 

The Breakwells claim the decision of the Pennsylvania Supreme Court in T.B. v. 

L.R.M., 786 A.2d 913 (Pa. 2001)), clearly establishes that a natural parent has the same 

“rights and liabilities” as a “person who, although not a biological parent, has lived with 

the child and provided care, nurture, and affection” for that child. Id. at 917. However, 

the holding in T.B. v. L.R.M. addresses only the right of an in loco parentis guardian to 

seek custody of a child for visitation purposes.2

 Id. at 920. Pennsylvania law regarding 

the rights of in loco parentis guardians during dependency proceedings is less clear. 

Compare In the Interest of DK, 922 A.2d 929 (Pa. Super. Ct. 2007) (extending T.B.’s 

reasoning to dependency cases), with In the Interest of L.C., 900 A.2d 378 (Pa. Super. Ct. 

2006) (following the Pennsylvania Supreme Court’s decision in In Re Davis, 465 A.2d 

614 (Pa. 1983), which held that Pennsylvania statutory law3

 prohibits consideration of in 

2

 Even in custody disputes, however, the rights of in loco parentis guardians are 

more limited than the rights of natural parents. While in loco parentis guardians must be 

given “the opportunity to litigate fully the issue of whether that relationship should be 

maintained,” T.B. v. L.R.M., 786 A.2d at 917, in loco parentis status “does not elevate a 

third party to parity with a natural parent in determining the merits of custody dispute.” 

Jones v. Jones, 884 A.2d 915, 917 (Pa. Super. Ct. 2005). 

3

 The Juvenile Act defines a “dependent child” as one who is without a parent, 
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loco parentis status in dependency proceedings); In the Interest of C.B. and A.L, 861 A.2d 

287 (Pa. Super. Ct. 2004) (same). Thus, the rights of an in loco parentis guardian to the 

continued care and supervision of a “dependent” child is far from “clearly established” 

under state law. 

Accordingly, the District Court did not err in holding that Terlecki and 

DeDominicis were entitled to qualified immunity on the First Amendment claim. 

B. 

The Breakwells claim CYF violated their Fourth Amendment rights by conducting 

four home visits over the course of two-and-a-half years, which included one attempt to 

enter their residence without their consent. We disagree. 

On October 15, 2005, the Breakwells assented to an emergency home visit after 

assuming physical custody of F.B. They agreed to a second visit on January 12, 2006, 

guardian or legal custodian. 42 PA. CONS. STAT. ANN. § 6302. The Pennsylvania 

Supreme Court has stated that “[t]here is no indication that the legislature intended 

‘parents’ to include anything other than natural, blood relationship parents, and adoptive 

parents.” In Re Davis, 465 A.2d 614 (Pa. 1983); In the Interest of C.B. and A.L, 861 A.2d 

287 (Pa. Super. Ct. 2004) (“Davis stands for the sound proposition that the doctrine of in 

loco parentis should not be employed when determining whether a child has a parent for 

purposes of determining whether the child is dependent and thus, whether agency 

involvement should be initiated.”). Moreover, while the Juvenile Act defines a 

“custodian” as one “who stands in loco parentis to the child,” several state courts have 

construed the term “legal custodian” narrowly, as a person who is “awarded custody 

pursuant to a Court order.” In re F.B., 927 A.2d 268 (Pa. Super. Ct. 2007). CYF’s 

narrow reading of “legal custodian” is therefore consistent with the state’s “fundamental 

precept that the Juvenile Act should be interpreted to accord the most protection to 

children.” In the Interest of C.B. and A.L, 861 A.2d 287 (Pa. Super. Ct. 2004). 
10 

 

after Judge Clark granted them temporary custody. A third consensual visit took place on 

January 27, 2006. Finally, on July 19, 2006, Terlecki and DeDominicis made an 

unannounced visit, but the Breakwells refused to consent to another inspection, so 

Terlecki and DeDominicis departed. Prior to being denied entry, DeDominicis “had her 

hand on the door and kind of pulled to step in.” App. 169–70. 

Viewing the foregoing facts in the light most favorable to the Breakwells, we have 

little trouble concluding that the District Court did not err in finding no Fourth 

Amendment violation. The first three home visits do not implicate the Fourth 

Amendment because they were consensual. United States v. Wilson, 413 F.3d 382, 388 

(3d Cir. 2005). As for the final visit, Terlecki and DeDominicis were denied entry to the 

Breakwell home, so no “search” occurred. United States v. Santana, 427 U.S. 38, 42 

(1976). 

C. 

The Breakwells next contend that when taken together, the Individual Defendants’ 

and the County’s actions violated their Fourteenth Amendment rights. The District Court 

concluded that the record did not support a finding that Defendants’ conduct was “so 

arbitrary” that it “can properly be said to shock the conscience.” Miller v. City of Phila., 

174 F.3d 368, 376 (3d Cir. 1999). We agree. 
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As we have explained, the initiation of dependency proceedings on behalf of F.B., 

her brother, and two half-siblings did not violate the Breakwells’ rights to familial 

integrity and association. Nor was there an unreasonable “search or seizure” of the 

Breakwells’ home. Thus, the only conduct which could theoretically present a colorable 

constitutional claim was CYF’s planning and supervision of visits between F.B. and her 

mother in violation of Judge Clark’s December 14, 2005 order that “visits be suspended 

[between F.B. and her parents] until further order.” 

Indeed, the record indicates that between February and April of 2006, CYF 

arranged several visits with F.B.’s mother in violation of Judge Clark’s December 2005 

order. See App. 245–46. The fact that these visits were not previously authorized by 

Judge Clark, however, does not alone support a finding of conduct so arbitrary as to give 

rise to a colorable Fourteenth Amendment claim. All visits between F.B. and her mother 

were supervised by CYF employees at either the CYF Regional Office or the Center for 

Creative Play. Id. Moreover, the record shows that CYF caseworkers communicated 

regularly with the Breakwells regarding the times, locations, and types of supervision 

available for these visits. Id. Because Terlecki and DeDominicis developed a reasonable 

visitation plan that did not expose F.B. or the Breakwells to any significant risk of harm, 

their conduct did not “shock the conscience” and the Breakwells’ Fourteenth Amendment 

claim must fail. 
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In sum, the District Court did not err when it found that Terlecki and DeDominicis 

were entitled to qualified immunity on the Fourth and Fourteenth Amendment claims. 

D. 

 Absent any constitutional violation, the Breakwell’s Monell claim against 

Allegheny County necessarily fails. See Grazier v. City of Phila., 328 F.3d 120, 124 (3d 

Cir. 2003) (“There cannot be an ‘award of damages against a municipal corporation based 

on the actions of . . . its officers when in fact . . . the officer[s] inflicted no constitutional 

harm.’”). 

IV. 

 For all the foregoing reasons, we will affirm the judgment of the District Court. 

Because we affirm the judgment on these grounds, we need not discuss the District 

Court’s analysis under the Rooker-Feldman Doctrine.