Charnesky v. Lourey

JILL CHARNESKY, Individually and as Mother and Next Friend of [B.C.],a Minor and Disabled Individual, Plaintiff, v. TONY LOUREY,¹ in his Official Capacity of Commissioner of the Minnesota Department of Human Services;NIKKI FARAGO,² in her Official Capacity as Assistant Commissioner for Children and Family Services for DHS;JAMIE SORENSON, in his Official Capacity of Director of Child Safety andPermanency Division of CPS for DHS; HEIDI WELSH,Individually and in her Official Capacity as Olmsted County Administrator;PAUL FLEISSNER,Individually and in his Official Capacity as Deputy County Administrator of Olmsted County Health,Housing and Human Services; SARAH OAKES,Individually and in her Official Capacity as Director of Health,Housing And Human Services for Olmsted County;EMILY COLBENSON, in her Official Capacity as Director Of Adult and Family Services in Olmsted County;AMY SHILLIABEER, Individually and in her Official Capacity as Director of Child and Family Services;JESSE STRATTON, Individually and in his Official Capacity as Supervisor of Child Protection Services;CHAD KIRSCHBAUM, Individually and in his Official Capacity as Supervisor of Child Protection Services;KIM PEASE, Individually and in her Official Capacity of Social Worker; MARISSA GAGNON,Individually and in her Official Capacity of Social Worker; JENNIFER STILL,Individually and in her Official Capacity of Social Worker; KAREN HAUGERUD,³Individually And in her Official Capacity as Guardian Ad Litem;SUSAN JENKINS, M.D., Individuallyand in her Official Capacity as Olmsted County Medical Consultant;MARK OSTREM, Individually and in His Official Capacity as Olmsted County Attorney;MICHELLE BARNES, Individuallyand in her Official Capacity as Assistant Olmsted County Attorney;FREDERICK SUHLER,⁴ Individually and in his Official Capacity as Public Defender;JUDITH TEED, Individually and in her Official Capacity as Olmsted County Foster Care Provider;and Unknown DOE defendants, Defendants.

File No. 18-cv-2748 (ECT/KMM)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

April 5, 2019

MEMORANDUM OPINION AND ORDER

Jill Charnesky, pro se.

Nicholas Walker Anderson, Minnesota Attorney General, St. Paul, MN, for defendants Tony Lourey, Nikki Farago, Jamie Sorenson, and Karen Haugerud.

Gregory J. Griffiths, Dunlap & Seeger, Rochester, MN, for defendants Heidi Welsh, Paul Fleissner, Sarah Oakes, Emily Colbenson, Amy Shilliabeer, Jesse Stratton, Chad Kirschbaum, Kim Pease, Marissa Gagnon, Jennifer Still, Mark Ostrem, and Michelle Barnes.

Bryon Glen Ascheman and Richard J. Thomas, Burke & Thomas, PLLP, St. Paul, MN, for defendant Susan Jenkins, M.D.

Aram V. Desteian and Kelly A. Putney, Bassford Remele, Minneapolis, MN, for defendant Frederick Suhler.

Michelle Draewell and James S. McAlpine, Quinlivan & Hughes, PA, St. Cloud, MN, for defendant Judith Teed.

Pro se plaintiff Jill Charnesky commenced this action on her own behalf and as "next friend" of her son, B.C., asserting claims against nineteen defendants relating to their alleged involvement in child-protection matters involving her and B.C. Defendants fall into five groups: (1) four defendants are with the Minnesota Department of Human Services (the "DHS Defendants"); (2) twelve defendants are associated with Olmstead County (the "Olmstead County Defendants"); (3) one defendant, Frederick Suhler, served briefly as Charnesky's court-appointed attorney in a proceeding in Olmstead County District Court; (4) one defendant, Susan Jenkins, M.D., is a private-practice physician whotreated B.C. for a time; and (5) one defendant, Judith Teed, is a foster-care provider in Olmstead County. Defendants seek dismissal of all claims asserted against them, with one exception. The exception is the Olmstead County Defendants, who seek dismissal of some claims and, with respect to other claims, an order pursuant to Federal Rule of Civil Procedure ("Rule") 7(a)(7) requiring Charnesky to reply to certain paragraphs of their answer asserting immunity-related defenses. The law requires that Defendants' motions be granted.

I⁵

Charnesky alleges that her son, B.C., is disabled, and has been diagnosed with various longstanding mental and neurological disorders. Compl. ¶¶ 7, 26-27, 29. Although the two were living out of state at the time, B.C. was referred to the Mayo Clinic, and he began receiving care there in February 2016. Id. ¶¶ 33-37. But it was difficult to pursue care at the Mayo Clinic while residing in another state, and in December 2016, Charnesky and B.C., moved to Rochester, Minnesota in December 2016, to better enable B.C. to treat at the Mayo Clinic. Id. ¶¶ 6, 38-39.

Several weeks after the pair moved to Minnesota, Charnesky became severely depressed and went to the Mayo emergency department. Id. ¶ 56(D). She was admitted to the hospital for ten days to treat severe seasonal affective disorder. Id. ¶ 56(E). Because she did not know anyone in Minnesota at the time, she voluntarily surrendered B.C. to thecare of Olmstead County Social Services during her hospital stay. Id. ¶ 56(D). Upon her discharge, B.C. was returned to her custody; at that same time, she expressed concerns about B.C.'s mental health to the social worker with whom she had worked in surrendering B.C.'s custody, Defendant Jennifer Still. Id. ¶ 56(F). The resources that Still suggested were not available to Charnesky because of her limited financial resources at the time. Id. ¶¶ 56(F), 57. Charnesky's own treatment following her discharge has been effective. Id. ¶ 71.

In March 2017, a Mayo psychiatry resident made a serious error with B.C.'s medication, and he had to be admitted to the Mayo Clinic emergency department. Id. ¶ 43. Charnesky retained an outside psychiatrist to treat B.C. and informed the resident that B.C. would no longer be her patient. Id. ¶¶ 44-45. Within twenty-four hours of B.C. being admitted to the emergency department, the psychiatry resident who made the medication error initiated a false CHIPS petition with Olmstead County Child Protection indicating that B.C. was the victim of child abuse. Id. ¶ 46. ("CHIPS" stands for "child in need of protection or services," see generally Minn. Stat. § 260C.141.) The resident's report recommended immediately removing B.C. from Charnesky's care. Compl. ¶ 56. Charnesky alleges that the resident, in concert with at least one other Mayo staff member, did this so that Charnesky would be preemptively discredited if she were to pursue a malpractice claim based on the medication error, and that in this way Olmstead County Child Protection acted as Mayo's "enforcer." Id. ¶ 83.

Jennifer Still—the same Olmstead County social worker who had interacted with Charnesky during her short-term voluntary surrender of B.C. as she sought emergencymedical care—authored the CHIPS petition. Id. ¶¶ 22, 47. That petition alleged that Charnesky suffered from factitious disorder by proxy (previously called Munchausen syndrome by proxy), a condition in which the subject falsely claims that another person has physical or psychological signs or symptoms of illness, or causes injury or disease in another person—here, according to the CHIPS petition, B.C.—with the intention of deceiving others. Id. ¶¶ 48, 64; see generally American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders § 300.19 (5th ed. 2013). (Charnesky had previously disclosed to B.C.'s treating neuropsychologist at Mayo that a physician in B.C.'s previous state of residence had accused Charnesky of having the disorder, but that an investigation by child-welfare authorities in that jurisdiction had "completely cleared" her. Compl. ¶¶ 62-63.) Not only does Charnesky deny having such a condition, she denies several of the other factual assertions in the CHIPS petition in ways that range from small to highly significant. Id. ¶¶ 48-49, 56(A)-(C), 64-81, 84. B.C. is also alleged to have denied most, if not all, of the allegations in the CHIPS petition. Id. ¶ 84.

On April 4, 2017, a Mayo psychiatrist who was sympathetic to Charnesky and who disagreed with the resident's report to Child Protective Services tried to warn Charnesky to leave the state before the CHIPS petition was served, but Charnesky was reluctant to remove B.C. from the care of his physicians at the Mayo Clinic. Id. ¶¶ 52-54. She stayed in Minnesota, and B.C. was taken into the custody of Olmstead County. Id. ¶ 55.

From there, Charnesky alleges, events worsened significantly. The CHIPS petition proceeded in Olmstead County District Court, although B.C.'s medical records—relevantto the central issue of whether Charnesky was unable to care for B.C. due to her own alleged factitious disorder by proxy—had not been produced to Charnesky. Id. ¶¶ 86-93. Meanwhile, B.C. was in a foster home that was unable to care for his medical needs and in which he was emotionally and verbally abused. Id. ¶¶ 94-96. B.C. was driven to self-harm in that foster placement, and after a hospitalization he was sent to a juvenile detention center where he was assaulted. Id. ¶¶ 96-100. No one reported that assault to the Olmstead County District Court until Charnesky, who learned of the assault only by happenstance, reported it. Id. ¶¶ 100-01, 105. After Charnesky reported B.C.'s assault to the state court, she alleges, CPS began retaliating against her for doing so by, among other things, barring her from attending B.C.'s medical and therapy appointments, reducing her visitation and requiring that it be supervised, cutting her off from receiving information from B.C.'s school, reducing her phone contact with B.C., and preventing her from sending him mail. Id. ¶¶ 107, 109, 124, 164. When B.C. was moved from the juvenile facility to a new foster home, Defendant Teed, the foster parent in that placement, did not facilitate a phone call between Charnesky and B.C. that had been planned for Christmas Day. Id. ¶¶ 108, 164.

B.C. was about 16 when these events began, and he turned 18 a few months ago. Mot. to Unseal [...