Z.F.1 by and through Parent v. Bethanna

244 A.3d 482

Z.F.1 and Z.F.2, as Minors, BY AND THROUGH their PARENT and Natural Guardian, [V.B.]

v.BETHANNA, Wayne and Rosella Keeny (H/W), Defender Association of Philadelphia, Roger Kimber, Jr., M.D. and Welsh Mountain Health Centers d/b/a Meadow Creek Family Practice

Appeal of: Defender Association of Philadelphia

No. 1425 EDA 2019

Superior Court of Pennsylvania.

Argued August 11, 2020

Filed December 16, 2020

William J. Leonard, Philadelphia, for appellant.

Charles Lyman Becker, Philadelphia, for Z.F.1 and Z.F.2, appellees.

Wayne and Rosella Keeny, appellees, pro se.

Mary Coyne Pugh, Norristown, for Montgomery Child Advocacy, amicus curiae.

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

OPINION BY McLAUGHLIN, J.:

The Defender Association of Philadelphia ("Defender Association") appeals from the judgment entered against it and in favor of Z.F.1 and Z.F.2 ("Children" or "Plaintiffs"), by and through their parent and natural guardian, V.B. ("Father"). The Defender Association claims that it is immune as a matter of law from suit, Plaintiffs failed to prove that it breached a standard of care or caused damages, the court erred in evidentiary rulings, and the court erroneously denied remittitur. We affirm.

Plaintiffs filed this action in June 2016, seeking damages for abuse Children allegedly suffered while Children lived in their foster parents’ home. Trial Court Opinion, filed Aug. 2, 2019, at 2 ("1925(a) Op."). They brought the action against "an agency that certifies and oversees foster homes," Bethanna, and Children's foster parents, Wayne and Rosella Keeny ("foster parents"). Id. Subsequently, in July 2017, Plaintiffs filed a separate action naming the Defender Association as a defendant,¹ and the trial court consolidated the cases.² The Defender Association filed an Answer and New Matter and asserted in New Matter, "Answering Defendants incorporate by reference all affirmative defenses according to the Pennsylvania Rules of Civil Procedure 1030(a)." Defender Association's Answer, filed Oct. 18, 2017, at ¶ 126. One of the defenses listed in Rule 1030(a) is "immunity from suit." Pa.R.C.P. 1030(a). However, the Defender Association did not file any pretrial motion, such as a motion for summary judgment, seeking dismissal based on any claim of immunity.

Plaintiffs settled with Bethanna prior to trial, and the case against the Keenys and the Defender Association proceeded to a jury trial.

The trial court set forth the following factual history:

ZF1 and ZF2 are twin siblings. Their biological mother was unable to provide parental supervision and services, thus [C]hildren were declared dependent and placed in the foster care system in April of 2011. On April 29, 2011, the Child Advocacy Unit of the Defender Association was named counsel and guardian ad litem of [C]hildren. Bethanna, an agency that certifies and oversees foster homes, placed [C]hildren with foster parents Wayne and Rosella Keeny, who lived in Lancaster, on August 24, 2011. At this time, [C]hildren were seventeen months old. While [C]hildren were living with the Keenys, and after roughly three years of being in the foster care system, the goal for [C]hildren became adoption. In reference to the process and timing of adoption, Shereen Arthur White, Esquire (Defender Association Attorney White)² testified at trial that "the law requires that after a certain time you have to kind of move them forward so they don't linger in the system." The Keenys were viewed as the prospective adoptive parents. In September of 2013, while [C]hildren were in the care of the Keenys, the Department of Human Services (DHS) contacted [Father] to inform him that he may be the father of [C]hildren.³ [Father] took a paternity test, the results of which were presented at a dependency hearing in January of 2014. The results established [Father] as the biological father of [C]hildren.

² Defender Association Attorney White was a child advocate attorney for the Defender Association. Defender Association Attorney White was assigned to work on [C]hildren's case around the time that the Defender Association received the case.

³ Information regarding the ordering of the paternity test and the process of contacting [Father] regarding the paternity test were never discussed on the record. This information was only discussed in the pleadings, which do not cite to any source.

[Father] appeared in court for the first time in January 2014. His paternity having been confirmed, [Father] requested visitation rights with his children. He was given permission to start with supervised visits. After having spent time with [C]hildren, [Father] informed DHS, his attorney Daniel Kurland, Esquire, and [C]hildren's Bethanna caseworker, Ms. Katie Herrmann, that he suspected abuse in the Keeny home. On multiple occasions, [Father] expressed concerns that [C]hildren were being spanked and that ZF1 was made to sit on the floor with her panties off. Ms. Herrmann told [Father] that she would check out the allegations of abuse and report back to him. Ms. Herrmann reported back that she could not find any proof that abuse was happening. [Father] again raised concerns of abuse of both children at a dependency hearing on May 29, 2014. Defender Association Attorney White and a Bethanna agency worker^{[ ]} were both present at this dependency hearing. In her testimony, Defender Association Attorney White asserted that "the agency worker from Bethanna" (whom she did not name) reported, "the Keenys do not spank or physically discipline ZF1 and ZF2. I was told that they physically discipline their biological son, but not ZF1 and ZF2."

Defender Association Attorney White testified that her general role as a child advocate attorney was to represent the best interests of the child. One of her specific roles was to gain, gather, and solicit facts about each of her cases. As mentioned above, at the May 29, 2014 dependency hearing, [Father] raised concerns that [C]hildren were being spanked as well as a concern that ZF1 was being made to sit on the floor without her underwear.

[The following portion of the May 2014 transcript, where the DHS social worker stated that Father expressed concerns about the foster parents, was read to Attorney Williams during the trial:

He said that he felt that the kids were being spanked in the foster home because during one of the visits – and he's here to testify to that -- they asked the children something ... about their bottom. And one of the kids reported: "I sit on the floor with my panties down, or something, and then they said something else."

N.T., 11/19/18, at 49-50.]

At trial, attorney for [P]laintiffs asked [Attorney White], "Can we agree that nowhere in that May 29, 2014 transcript do you follow up with any questions about the child being made to sit on the floor with her panties down or do any of the things that you suggested to this Court and this jury that you would have done if you had heard such an allegation?"⁵ In response, Defender Association Attorney White stated, "I can tell you that in that transcript there's nothing about me following up, but my work goes way beyond a transcript in a court hearing." Defender Association Attorney White then confirmed that an allegation such as the one made at the May 29, 2014 hearing regarding ZF1 being made to sit on the floor without her panties would warrant immediate removal and investigation. She further confirmed that she did not request that ZF1 be removed from the home at the May 29, 2014 dependency hearing nor at any time thereafter, prior to the removal of [C]hildren from the Keeny home in May of 2015.

⁵ Defender Association Attorney White had testified that, if she had become aware of an allegation or involving concern ZF1 [was] being made to sit on the floor without her underwear in front of Mr. Keeny, "I would have gotten it before the judge. I would have asked to remove. I would have asked for further investigation. I would have asked to get her out of there while we figure out what's going on."

In May of 2015, after [Father] raised additional concerns of abuse, Bethanna sent caseworker Marissa Morris to visit the Keenys’ home for further investigation. At trial, Mrs. Keeny confirmed that, during this visit, Marissa Morris took [C]hildren separately and inquired of [C]hildren whether they were being spanked or hit. Mrs. Keeny also acknowledged that it was during this visit that it actually came to light that the Keenys had spanked [C]hildren.

On May 13, 2015, Ms. Katie Herrmann, the Bethanna caseworker who had been assigned to [C]hildren's case since January of 2014, reported to Defender Association Attorney White that the Keenys had confirmed their use of physical discipline on [C]hildren. The Bethanna foster care rules forbid corporal punishment of foster children. Defender Association Attorney White requested that [C]hildren be moved out of the home immediately. Bethanna initially attempted instead to implement a "plan of correction", which entailed reprimanding the Keenys and allowing [C]hildren to remain in the Keeny home. However, Defender Association Attorney White emailed Bethanna caseworker Marissa Morris on May 13, 2015, stating that a plan of correction was an insufficient remedy for the alleged issue at hand. Defender Association Attorney White stated that her clients, ZF1 and ZF2, must be moved to respite on that date. At trial, Mrs. Keeny confirmed that after she admitted to having spanked [C]hildren, they were removed from the Keeny[s’] home. In early June of 2015, Colleen Swim, Esquire (Attorney Swim) succeeded Defender Association Attorney White as the Defender Association Child Advocate Attorney for [C]hildren.

According to the Child Protective Services Investigation Report from November 20, 2015, ZF1 made "consistent and credible disclosures of sexual abuse".⁶ The report also noted, in reference to ZF1, the "child reported that AP⁷ inserted his finger in her vagina, in parentheses hiney, and anus, in parentheses

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