M.B. v. City of Philadelphia

128 F. App'x 217
CourtCourt of Appeals for the Third Circuit
DecidedApril 1, 2005
DocketNos. 03-2846, 03-28709
StatusPublished
Cited by3 cases

This text of 128 F. App'x 217 (M.B. v. City of Philadelphia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.B. v. City of Philadelphia, 128 F. App'x 217 (3d Cir. 2005).

Opinion

OPINION OF THE COURT

MCKEE, Circuit Judge.

The defendants appeal a jury verdict in the amount of $2.8 million in favor of plaintiff on a claim arising out of the foster care placement of her minor child, “M.B.” For the reasons that follow, we will affirm.

I. FACTS

Mary Barksdale is a 76 year old widow who lives in Philadelphia, Pennsylvania. The Women’s Christian Alliance (“WCA”) is a social services agency licensed by the Commonwealth of Pennsylvania and under contract with the City of Philadelphia. Pursuant to that contract, the WCA assists the City in placing children in foster care when parental custody has been suspended or terminated. In her capacity as a foster parent, Barksdale has raised many foster children in cooperation with the City and the WCA.

“M.B.” was born in 1992, and lived with her biological mother, “T.B.,” for the first several months of her life. The Juvenile Court eventually removed M.B. from T.B.’s custody because of the latter’s mental illness and neglect. Pursuant to its contract with the Philadelphia Department of Human Services (“DHS”), the WCA accepted M.B. into foster care and she was placed with Barksdale in September 1993. She remained in Barksdale’s custody through August 1994, when T.B. regained custody.

Problems with T.B.’s care of M.B. developed again in the summer of 1995, and M.B. was once again placed with Barks-dale in September 1995. M.B. remained in Barksdale’s foster home until September 1996.1

[221]*221Irving Ford, an adult male son of one of Barksdale’s neighbors, was “kicked out” of his father’s home and left with no place to stay at some point prior to M.B.’s second placement with Barksdale. Barksdale purportedly felt sorry for Ford and let him sleep on a couch in her basement until he “got on his feet” and found a place to live.

T.B. periodically visited Barksdale during M.B.’s second placement with her. During those visits, T.B. saw Ford and was aware that he was living in Barks-dale’s basement. In her deposition, T.B. testified that during her visits, M.B. made statements about Ford being her boyfriend, “freak[ing] her”, and showing her “porn” books. After these visits, T.B. contacted Wayne Gregory, a DHS employee assigned to M.B.’s case, regarding Ford’s presence and M.B.’s comments. T.B. testified that she also informed Thomas Cies-linsk, Gregory’s supervisor, of her concerns. D.H.S. employees subsequently told T.B. that Ford did not five with Barksdale.

At the beginning of May 1996, while bathing M.B., Barksdale noticed that M.B. appeared to have developed several “bumps” in her genital area. Barksdale informed the respite worker who was assisting her, and the respite worker sought medical attention for M.B. Thereafter, M.B. was diagnosed with the Human Pa-pilloma Virus2 (“HPV’), and genital warts, and subsequently underwent a colposcopy.3 Although M.B. denied having been “touched” by anyone, a “CY-47” report of suspected abuse was filed.

DHS conducted two investigations after learning of M.B.’s condition. In the first investigation, conducted in 1996, Investigator Emory Ellis concluded that the claim of sexual abuse could not be substantiated. In the second, conducted in 1997, Ellis found that there was substantial evidence of sexual abuse.

Barksdale claimed that Marva Rountree, a WCA caseworker, knew of Ford’s presence in her home. According to Barks-dale, Rountree saw Ford there and spoke to him on various visits she had made to Barksdale’s home prior to, and during, M.B.’s stay there.4 The WCA admitted that caseworkers had seen Ford in Mrs. Barksdale’s home, but denied knowing that Ford lived there. Since Ford was known as a neighbor who was sometimes paid for [222]*222doing chores in the neighborhood, the WCA purportedly believed that he was only occasionally present in Barksdale’s home. Accordingly, the WCA maintains that it had no knowledge that he was actually living in the Barksdale home while M.B. was there.

Barksdale denied knowing that Ford was performing any sexual acts upon M.B. or being involved in any improper touching. Barksdale also denied allowing Ford unsupervised access to M.B., and she testified that she was unaware that he was smoking crack cocaine in her home.

However, Ford was ousted in 2001, for rape and related charges. He thereafter pled guilty to sexual assault, indecent assault and corruption of the morals of a minor based upon complaints that he had molested M.B. in Barksdale’s home. During the course of his guilty plea colloquy the following exchange occurred:

ASSISTANT DISTRICT ATTORNEY: Judge, a summary of the facts that the Commonwealth would present, we would first call [M.B.].... She would testify that back when she was four years old she was living in foster care with [Mrs. Barksdale]. That at the time she was living with Ms. Barks-dale the defendant, who she would identify as Erving [sic] Ford, ... had a space down the basement of Ms. Barksdale’s house. She would testify that during the time that [M.B] was there the defendant would come upstairs ... remove her clothing and touch her body, and he did at some point in time place his penis inside her vagina. The testimony would also indicate, Your Honor, that subsequent to that date back in 1997 the complaining witness was treated at Children’s Hospital and genital warts were surgically removed for the child.... [I]n ... 2000 [M.B.] ... made the disclosures as to what Mr. Ford had done to her ... back when she was between three and four years old.... We would have further presented medical testimony to show that the genital warts that the child had were contracted through sexual contact.
THE COURT: Okay. You hear those facts?
FORD: Yes, sir.
THE COURT: Are they substantially correct?
i¡{ ífc # Sjí í¡5
FORD: Yeah.

However, when he was subsequently deposed, Ford denied committing the acts he had admitted during his guilty plea colloquy. Rather, he claimed that he had been pressured into pleading guilty by his court-appointed attorney who allegedly demanded that Ford plead guilty despite his protestations of innocence.5

As Barksdale points out, the frequency, location and nature of M.B.’s abuse remains unclear. No one witnessed Ford’s molestation of M.B., and Barksdale continues to argue that, if M.B. was sexually abused, it occurred sometime between August 1994 and August 1995, when M.B. was living with her mother.

The WCA echoes Barksdale’s argument and adds that there is no evidence that Ford has HPV or that he transmitted it to M.B. Ford has never been tested, no medical records indicate that he has HPV and he denies having the disease. The WCA argues that, since the incubation of the [223]*223HPY virus is unknown, and since an infected individual can remain asymptomatic for years with no sign of infection at all, M.B.’s diagnosis of HPV in May 1996, only establishes that M.B. was exposed to it at some point. However, argues the WCA, the exposure could have occurred at any point in her life, or even during her gestation, and M.B.’s infection therefore cannot be traced to her stay in Barksdale’s foster care.

II. PROCEDURAL HISTORY

T.B.

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Bluebook (online)
128 F. App'x 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mb-v-city-of-philadelphia-ca3-2005.