Estate of Place v. Anderson

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 66)

          JOHN L. KANE, SENIOR U.S. DISTRICT JUDGE

         INTRODUCTION

         This civil action involves the death of Angel Place (“Angel”) on September 17, 2014, when she was 11 months old and a foster child under the care of foster parents Randy Bond and Sydney White. Angel died after having been shaken and kicked violently by Sydney White. Plaintiff seeks damages against three social workers employed by the Mesa County Department of Human Services.

         The operative complaint is the Second Amended Complaint. (ECF No. 73).

         JURISDICTION

         Jurisdiction is provided by 28 U.S.C. §§ 1331 & 1343(a)(3).

         PARTIES

         The plaintiff is the Estate of Angel Place, represented by Shane Place and Misty Blackwell, personal representatives. Shane Place is Angel Place's paternal grandfather. He was appointed personal representative of the Estate on October 22, 2016, in the state court probate proceeding captioned In the Matter of the Estate of Angel Place, No. 16PR30293, in the District Court for Mesa County, Colorado. Ms. Blackwell was appointed co-personal representative of the Estate on September 26, 2018.

         The defendants are Joyce Anderson, Joni Bedell, and Crystal Stewart. They are sued in their individual capacities and in their official capacities as employees of the Mesa County Department of Human Services.

         Plaintiff's claims against defendant Jacque Berry were dismissed by stipulation. See Stipulated motion to dismiss (ECF No. 80) and Order dated March 28, 2019 (ECF No. 81).

         CLAIMS

         Plaintiff asserts three claims for relief pursuant to 42 U.S.C. § 1983.

         Plaintiff's first and second claims allege that Defendants violated Angel's right to Substantive Due Process guaranteed by the Fourteenth Amendment to the United States Constitution. As discussed below, claim one is premised on the “special relationship doctrine, ” and claim two is premised on the “state-created danger theory.”

         The third claim alleges violations of the Adoption Assistance and Child Welfare Act of 1980 (AACWA), 42 U.S.C. § 670 et seq.^[1]

         The fourth claim for violation of the Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a et seq., was dismissed by stipulation. See Stipulated motion to dismiss (ECF No. 80) and Order dated March 28, 2019 (ECF No. 81).

         DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 66)

         On January 9, 2019, Defendants moved pursuant to Fed.R.Civ.P. 56 for dismissal of all claims, arguing (1) the doctrine of qualified immunity shields them from liability in their individual capacities; (2) the first and second claims fail on the ground that Plaintiff's evidence is not sufficient to show a substantive Due Process violation under either the special relationship or state-created danger theory; and (3) the third claim fails because the subject provisions of the AACWA do not provide rights enforceable under § 1983, or if they do, the available relief is limited to injunctive relief.

         Defendants' motion is supported by documents, deposition testimony, and other evidence identified as Defendants' Exhibits A-1 through A-22 (ECF Nos. 66-1 through 66-47).

         Plaintiff opposed the motion in a response filed February 15, 2019 (ECF No. 74). Plaintiff supported its response with exhibits marked as Plaintiff's Exhibits 1 through 32 (ECF Nos. 74-1 through 74-32).

         Defendants replied on March 15, 2019, and provided additional documents marked as Defendants' Exhibits A-23 through A-28-1 (ECF Nos. 78 and 78-1 though 78-7).

         Plaintiff was granted leave to file a sur-reply, which was filed on May 1, 2019 (ECF No. 86).

         FACTS

         Defendants' motion includes a statement of undisputed facts, but that statement is set forth in narrative form and not in numbered paragraphs. (Defs.' mot. at pp. 3-12). Plaintiff's opposition brief does not admit or deny Defendants' statement of undisputed facts. Instead, Plaintiff provides its own statement of facts in narrative form. (Pl.'s resp. at pp. 2 - 22). Both parties include argument with their version of the facts.

         Below is my own effort to describe the factual background without the parties' argumentative statements. I drew the following statement of facts from exhibits and the parties' descriptions of the background facts.

         The underlying material facts appear to be generally undisputed. There are, however, disputes about inferences to be drawn from the facts. Those disputes are identified in the discussion below.

         Angel enters foster care

         Angel Place (Angel) was born on October 6, 2013 to parents Tierra Bond Place (age 16) and Theodore Place (age 19). In late November 2013, the Mesa County Department of Human Services (MCDHS) received a report of safety concerns about Angel. An MCDHS case manager, Jacque Berry, investigated that report. She determined that the biological parents were physically and verbally abusive toward each other, using marijuana, neglecting Angel, and the home was unsafe for Angel. (Pl.'s Ex. 1, Request to File Petition in Dependency and Neglect). The MCDHS obtained custody and removed Angel from her biological parents' home on December 6, 2013, pursuant to an emergency court order in a state court action captioned In the Interest of Angel Lanee Place, a minor child, and concerning Tierra Sue Place and Theodore Elvin Place, No. 13 JV 410, District Court for Mesa County, Colorado (the Juvenile Court Action). (Pl.'s Ex. 2, Emergency Custody and Pickup Order).

         Angel is placed with foster mother Misty Blackwell

         The MCDHS initially placed Angel with foster parent Misty Blackwell. An organization known as Ariel Services had certified Ms. Blackwell to be a foster parent, and Ariel Services referred Ms. Blackwell to the MCDHS. Cassandra Strang, an Ariel Services caseworker, monitored Angel's placement with Ms. Blackwell and reported to the MCDHS. (Defs.' Ex. A-3, M. Blackwell Dep. at 19:6-18; Defs.' Ex. A-4, Strang Dep.)^[2]

         Ms. Blackwell was a good foster mother who provided a safe home for Angel. (Defs.' Ex. A-5, Stewart Dep. at 66:1-9). By all accounts, Angel was healthy, comfortable, and well-adjusted under her care.^[3]

         The MCDHS considers kinship placement

         Ms. Blackwell was not related to Angel. According to Colorado and federal law, the MCDHS was required to engage in a diligent search for a kinship foster home. See 42 U.S.C. §671(a)(19); C.R.S. § 19-3-403; C.R.S. § 19-3-508(5)(b)(I); C.R.S. § 19-3-605(1); C.R.S. § 19-1-115(1) & (3)(a). The MCDHS manual for the Family and Children Services Division includes the following statement: “The State Department of Human Services Mandates that children be placed with kin when kin are determined to be safe and appropriate, and that a diligent search process to locate kin begin within 3 days of placement and continue until a permanent placement plan is reached.” (Pl.'s Ex. 10, MCDHS Kinship Care Policy and Procedure).

         The MCDHS began that search in early December 2013. By the end of that month, a young couple, Mr. Randy Bond (Randy) and Ms. Sydney White (Sydney), were identified as potential kinship foster parents. (Def.'s Ex. A-6-1, Kinship Diligent Search Referral Form).^[4]Randy is a first cousin of Angel's biological mother, Tierra Bond Place.

         Randy and Sydney had lived together as common law husband and wife for approximately four years. Randy was then 21 years old, and Sydney was almost 20 years old. They were the parents of two children - a son (Kaleb) who was then just over 2 years old, and daughter (Harper) who was under the age of 1. Randy and Sydney expressed their desire to provide Angel with a loving home. (Defs.' Ex. A-6-5, Home Study at MC-2017).^[5]

         During the relevant time period, Defendant Joni Bedell was a supervisor employed by the MCDHS.

         An MCDHS caseworker, Ethan Storeng, initiated the process to certify Randy and Sydney as foster parents by sending an email to Bedell, requesting a Safe Home Study of Randy and Sydney. (Defs.' Ex. A-6-2, Jan. 30, 2014 email from Storeng to Bedell).

         A Safe Home Study is an industry standard used by state and county agencies to assess and approve potential foster parents. It is a detailed report that includes information such as criminal background checks; reference checks; medical reports regarding the applicants; interviews with the applicants and members of their household; and other documents. (Def.'s Ex. A-6-4, part 1 at ¶ 44110).

         Defendant Bedell assigned the task of conducting the Safe Home Study of the Bond/White household to defendant Joyce Anderson, an MCDHS Placement Resource Manager.

         Connie Mercer, another placement resource manager, also was involved in the process of certifying the Bond/White household to become a foster home. Ms. Mercer was responsible for matters such as ensuring that the applicants' home met certain standards; the applicants were prepared to provide a safe environment for the foster child; and required paperwork was completed. (Pl.'s Ex. 16, Mercer Dep. 64:12-65:21; Defs.' Ex. A-9, Bedell Dep. at 34:21-36:7; 37:23-25).^[6]

         The Certification Process and Home Study Report

         To become certified as foster parents, Randy and Sydney attended a series of training classes and completed application forms. (Defs.' Ex. A-6-3, MCDHS training records; Defs.' Ex. A-6-4, part 2, Application to Care for Children).

         To prepare the Home Study, Ms. Anderson assembled and reviewed various records, including criminal background checks of Randy and Sydney, social histories, documentation of their interactions with DHS, and other data. (Defs.' Ex. A-6-4, parts 1 & 2). Ms. Anderson interviewed Randy and Sydney - both individually and together - and observed them with their two children. (Defs.' Ex. A-11, Anderson Dep. at 43:8-21; 57:22-58:14). Ms. Anderson reviewed Randy's and Sydney's responses to questions on the application forms and SAFE assessments, which included detailed information about their personal lives and histories. (Defs.' Ex. A-6-4, part 1).

         In the Home Study report, Ms. Anderson documented that Sydney “grew up in an extremely dysfunctional home” and experienced a difficult childhood and teen years. (Defs.' Ex. A-6-5 at MC-2032). In questionnaire responses, Sydney had disclosed that her mother had abused her emotionally and sometimes physically. (Def.'s A-6-4, part 1 at MD-4127-4128). In response to questions about whether she had been sexually abused, assaulted or molested as a child or teenager, Sydney wrote that she was uncertain. (Id.) Sydney's written responses also indicated that she suffered from depression and panic attacks. (Id. at MD-4140). The information compiled by Ms. Anderson included a Colorado Department of Human Services Child Welfare “Trails System Report” which showed that in 2010 Sydney had been a truant during her school years and assessed as a “Youth in Conflict.” (Defs.' Ex. A-6-4 pt. 2 at MD-4195). The Trails Report included statements by White's mother who said that she and Sydney had verbal and physical altercations, which included them pushing and slapping each other. (Id. at MD 4197).

         The documents that Ms. Anderson gathered showed that Randy, too, had experienced a troubled family life during his youth. (Defs.' Ex. A-6-5 at MC-2023-2024). A Trails System Report for Randy described an incident in 2007 when it was reported that Randy's stepfather had been physically abusive to him. (Defs.' Ex. A-6-4 pt. 2 at MD-4186-4194).

         In the Home Study, defendant Anderson documented that both Randy and Sydney graduated from high school, and that Sydney had graduated a year early. (Defs.' Ex. A-6-5 at MC-2023-2027). Randy was described as healthy with no medical issues. (Id.). Neither of them smoked or drank. (Id.). They appeared to be financially responsible. (Defs.' Ex. A-6-5 at ¶ 2030). They had recently purchased a home in Grand Junction. (Id. at MC-2018 & MC-2021).

         Randy's and Sydney's daily routines were described in the Home Study. It showed that Randy was employed by Coca Cola as a commercial driver, and that he left for work around 5:00 a.m. and was gone much of the day, often working 50 hours a week. The Home Study stated that Sydney stayed at home with their 2-year old son and infant daughter, and was also home schooling her younger sister. (Defs.' Ex. A-6-5 at MC-2022, MC-2030).

         In short, the personal history information that Ms. Anderson assembled about Randy and Sydney showed they had experienced abuse and family dysfunction during their younger years, but described Randy and Sydney as responsible parents to their own two children. (Defs.' Ex. A-6-5 at ¶ 20230-2031).

         Information provided by Sydney and Randy indicated they argued almost daily, but there were no reports of them being physically abusive to each other or their children. (Defs.' Ex. A-6-4, part 1 at MD-4136).

         A team of MCDHS workers reviewed and discussed Anderson's Home Study report. They discussed that Randy and Sydney were young parents who already had two young children. (Defs.' Ex. A-6-5 at ¶ 2017-2035; Defs.' Ex. A-9, Bedell Dep. at 34:21-36:7; Defs.' Ex. A-8, Storeng Dep. at 129:17-130:7).

         On April 11, 2014, Ms. Bedell (Anderson's supervisor) wrote an email to Ms. Anderson and Ms. Mercer, stating in part:

I can't make it to the co-team meeting today to discuss the Bond home study. . . . Here's my two cents. We give preference to family unless there is extenuating circumstances that it would be detrimental to the child (i.e. breaking the attachment during critical developmental stages, which usually starts at about 9 months to 3 years of age). . . .

(Pl.'s Ex. 28, Bedell email).

         Ms. Anderson concluded that Angel should be placed with Randy and Sydney. (Defs.' Ex. A-6-5 at MC-2033). Ms. Bedell concurred with that recommendation. (Id. at MC 2034).

         When Ms. Anderson was deposed in this litigation, she testified that the reasons for her recommendation were “based on many factors and both of them (Randy and Sydney) had been living very productive lives, and they had - their current behavior and the current lifestyle was not one of abuse.” (Defs.' Ex. A-11, Anderson Dep. at 138:15-19). Ms. Anderson was aware that Sydney was only 20 years old, but viewed her as a “very mature 20.” Ms. Anderson said that based on “everything (she had) observed at the time that I did the study told me that (Sydney) was mature and she was a good mom to her child(ren).” (Id. at 157:1-3, 157:16-18).

         Defendant Crystal Stewart, an MCDHS senior case manager, was responsible for monitoring Angel's foster home placement. Her job was to focus on the child. (Defs.' Ex. A-5, Stewart Dep. at 80:1-80:14). Ms. Stewart saw Angel in Ms. Blackwell's home on May 2, 2014, and reported, “Angel is a very happy baby. She has no medical issues and is overall a healthy baby.” (Pl.'s Ex. 9, Family Services Plan Review).

         The position of the MCDHS remained that Angel should be placed in the Bond/White household. (Id.).

         Because Sydney was under 21, a written waiver was required before she could be certified as a foster parent. (Pl.'s Ex. 16, Mercer Dep. at 109:15-18; 116:6-12). The MCDHS team decided that the age requirement should be waived, but the waiver was not signed until July 23, 2014. (Pl.'s Ex. 23). It was not completed on June 17, 2014, when the MCDHS recommended to the Juvenile Court that Angel be moved to the Bond/White household.

         Juvenile Court Action Proceedings

         Proceedings in the Juvenile Court Action had been ongoing, and Angel's biological parents had appeared through separate counsel. By court order dated January 22, 2014, Angel was adjudicated dependent or neglected as to the biological mother, and a similar order entered as to the biological father on March 13, 2014. (Pl.'s Exs. 7 & 8, Court orders). Those orders stated that the MCDHS was making “reasonable efforts to reunite the child and family” and that such efforts would continue. (Id.). That is, the Juvenile Court Action did not involve efforts to terminate the parental rights of the biological parents. Pursuant to the state court's orders, Angel remained in the custody of the MCDHS, in the care of Ms. Blackwell.

         During the spring of 2014, the MCDHS focused on placing Angel with the Bond/White kinship family.

         In late March 2014, Ms. Blackwell filed a pro se motion to intervene in the Juvenile Court Action, stating that she objected to any plans the MCDHS might have to change Angel's placement. (Pl.'s Ex. 2). Her motion to intervene was granted on April 22, 2018. (Id.).

         The presiding judge in the Juvenile Court Action, Magistrate William T. McNulty, held a hearing on May 2, 2014, and set a hearing for June 17, 2014, to review the biological parents' treatment plan and to consider the proposed transfer of Angel's foster placement from Ms. Blackwell to the Bond/White household. (Defs.' Ex. A-15, Hrg.Tr. June 17, 2014 at 2:14-24).^[7]

         The Attachment Assessment

         In preparation for the June 17, 2014 hearing, the MCDHS conducted an evaluation to assess “Angel's developmental stage and her attachment to determine whether or not Angel (could) transition into the kinship home successfully.” (Pl.'s Ex. 9, Family Services Plan Review). That evaluation was done by MCDHS employee Michelle Doll, a licensed counselor with experience in making such assessments. After meetings with Ms. Blackwell and the Bond/White family, Ms. Doll prepared a written report, which was completed on June 13, 2014. (Defs.' Ex. A-6-7, Attachment Assessment).

         In the Attachment Assessment, under the heading “parental strengths, ” Ms. Doll wrote:

Angel's current foster mother, Misty, is consistently responsive, nurturing, and able to read Angel's cues. It is evident she is bonded to Angel. The kin family, Randy and Sydney, are gentle, are responsive, are nurturing, and demonstrate a lot of concern for Angel's needs and will modify their strategies to meet her needs. Their own children have formed secure attachments with them. Both families demonstrate age appropriate and developmentally supportive parenting strategies.

(Id. at MC-2532). Ms. Doll observed that Angel generally was where she needed to be developmentally, stating that Angel was behind on her gross motor skills, but socially and emotionally she was on track. (Id. at MC-2533). Ms. Doll concluded that placement of Angel in the Bond/White household could proceed if the transition was completed soon. (Defs.' Ex. A-6-7 at MC-2533-34; and Defs.' Ex. A-14, Doll Dep. at 21:1-2; 100:4-10; 100:15-22; 102:14-103:1; 204:25-206:4).^[8]

         The June 17, 2014 Hearing

         Shortly before the June 17, 2014 hearing, Ms. Blackwell consulted with attorney Trudee Andersen Gurley. On June 13, 2014, Attorney Gurley moved to continue the upcoming hearing and filed a “conditional entry of appearance, ” which stated that Gurley would appear for Ms. Blackwell if the court were to grant the motion for continuance. (Pl.'s Ex. 22, Intervenor's Conditional Entry of Appearance).

         The court proceeded with the June 17 hearing. Attorney Gurley initially appeared with Ms. Blackwell. The County Attorney was present, with Ms. Stewart as the MCDHS representative. The biological parents were represented by their counsel. Also present were Mr. Robert Tweedell, the court-appointed Guardian Ad Litem (GAL), and a CASA representative, Ms. Schmid. (Hrg. Tr. at 2:1-13).^[9]

         Magistrate McNulty began the hearing by stating that he had reviewed a number of reports, including the Home Study, and asked counsel to address the issue of a continuance.

         The counsel for the biological mother objected to the continuance. The GAL expressed concern about delay. There was discussion about Ms. Blackwell's reasons for not obtaining counsel sooner. The County Attorney would agree only to a very short continuance of less than two weeks, and stated that the County's witnesses were present and ready to testify. (Id. at 2:14-10:5).

         Magistrate McNulty denied the motion for continuance, stating that although there was some good cause for continuance, it was uncertain when a hearing could be rescheduled and the court could not find that a continuance would be in the best interest of the child, recognizing that allegations in the case involved attachment issues which needed to be resolved promptly. (Id. at 10:11-13:24). After the motion for continuance was denied, Attorney Gurley departed and Ms. Blackwell represented herself.

         The County called Ms. Doll as its first witness, and the Attachment Assessment was admitted into evidence. (Id. at 19:14- 20:19; 26:14-27:10). Ms. Doll testified that Angel, then 8-months old, was in the early phases of developing attachment and was already forming a secure attachment with Ms. Blackwell. (Id. at 28:5-30:6; 32:6-7; 42:20-25). Ms. Doll did not make a recommendation about whether Angel should be moved from Ms. Blackwell's home to the Bond/White household, but opined that any decision should be made quickly. (Id. at 34:13). Ms. Doll said there were risks with many moves and that multiple moves were less than ideal. (Id. at 49:18-51:3).

         Randy Bond was the next witness. He testified about his background, employment, family, relationship to Angel, and his participation in the foster family certification process. (Id. at 57:19-71:5).

         Ms. Place (Angel's biological mother) testified by telephone and expressed her desire to have Angel placed in the Bond/White household. (Id. at 71:6-75:16).

         The County then called Ms. Stewart. (Id. at 76:20). She testified that Randy and Sydney were approved to be a licensed foster home. She opined that it was in Angel's best interest to be placed with Randy and Sydney. (Id. at 76:14-19; 78:24-79:1). The Home Study was admitted into evidence during questioning by counsel for the biological father. (Id. at 82:17-84:7).

         When Ms. Stewart was asked by the County Attorney if there was anything that was not addressed that the Court should know, she responded, “I don't think so.” (Id. at 78:16-18). Ms. Stewart did not draw attention to any information about Sydney and Randy that might have raised concerns about placing Angel with them. Ms. Stewart did not explain that the Bond/White household could not yet legally be a foster home because Sydney was under 21 and the form required to waive the minimum age standard had not been signed.

         After the County presented its evidence, Ms. Blackwell called Sydney White as a witness and questioned her about the difficulties of caring for a third child and whether she had concerns about potential child abuse by Randy's mother and stepfather. (Id. at 90:12-99:6).^[10]

         Ms. Blackwell also called Cassandra Strang (the Ariel caseworker), who testified about Angel's attachment to Ms. Blackwell and Angel's healthy development under Blackwell's care. (Id. at 99:16-24). Another witness, Cheryl Morris, also testified about her observations of Angel's attachment to Ms. Blackwell. Blackwell's father (O'Neal Blackwell) and mother (Shirley Blackwell) testified about their relationship with Angel. (Id. at 108:22-121:2). Ms. Blackwell was sworn as a witness and explained why she believed Angel should not be moved from her home. (Id. at 121:3-127:20).

         Ms. Schmid, the CASA representative, was not called to testify. When deposed in this litigation, Ms. Schmid said that she had reservations about the Bond/White household and thought Angel would be a lot safer with Ms. Blackwell. (Pl.'s Ex. 5, Schmid Dep. at 89:12-25). Ms. Schmid had expressed those concerns to the GAL before the June 17 hearing. (Id. at 90:1-93:9).

         The GAL, however, supported the MCDHS's position that Angel should be transferred to the Bond/White kinship foster home, as did the attorneys for the biological parents. (Tr. at 131:6-135:3).

         At the conclusion of the hearing, Magistrate McNulty ruled that it was in Angel's best interests to be placed with the Bond/White kinship family and ordered that the transfer occur according to a ...