P.F. v. Gordon

P.F., et al., Plaintiffs, v. Betsy Gordon, et al. Defendants.

Case No. 3:15CV01923

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION

May 10, 2018

Order

In this 42 U.S.C. § 1983 action, plaintiffs, Mr. and Mrs. F., accuse defendants, employees of the Ottawa County, Ohio, Department of Job and Family Services (OCDJFS), of violating their procedural due process rights based on defendants' removal of their daughter, B., from their home following an allegation of sexual abuse.

Pending is defendants' motion to strike the affidavits Mr. and Mrs. F. submitted with their brief in opposition to defendants' motion for summary judgment. (Doc. 81). Plaintiffs oppose the motion (Doc. 87), and the parties have briefed the issues extensively. (Docs. 90, 91, 92, 93). For the reasons that follow, I grant the motion in part, and deny it in part.

Background

Mr. and Mrs. F. are the adoptive parents of B., a teenaged daughter, and foster parents to two younger children, son D. and daughter A.

On April 27, 2015, defendant Julie Barth, a supervisor in the Children's Services Division, received an intake report detailing B.'s complaint that her father sexually and physically abused her. Barth assigned the matter to defendant case worker Betsy Gordon. She and Barth reviewed the complaint and reported the matter to the Adriel School, the organization through which Mr. and Mrs. F. received their foster parent licenses, and to the Ottawa County Sheriff's Office.

Barth and Gordon¹ then went to the F. home to speak with B. and her parents, accompanied by Deputy Matt Gandee (not a defendant in the action) from the Ottawa County Sheriff's Office.

B. answered the door when they arrived. Mrs. F. was at home but Mr. F. was away, attending a soccer game with A. and D.

Gordon spoke to Mrs. F. while Gandee and Barth spoke to B. privately, in a separate room. Gordon explained B.'s allegations against her father, and Mrs. F. relayed that her daughter had a history of sexual addiction and traumatization. Meanwhile, in her interview with Gandee and Barth, B. reiterated her complaints against Mr. F., which were consistent with the allegations described in her initial complaint.

At some point, Gordon stepped outside to call personnel at child welfare agencies in Lucas and Allen Counties, which held legal custody of the younger foster children. Both agencies informed Gordon that they would place A. and D. in respite care outside the home pending the outcome of the investigation into B.'s claims. Gordon also called Adriel, which worked with Allen County to find a respite care home for A., with a Mr. and Mrs. Hartlage. The Hartlages also expressed a willingness to take B. in if necessary.

Once back inside the house, Gordon spoke to Mrs. F. to determine how to proceed. What was, or was not said during their exchange is at the center of the present suit.

According to Gordon, she "explained to [Mrs. F.] what Lucas County and Allen County had decided," then expressed her "concerns about [B.] remaining in the home with [Mr. F.] during the pendency of this investigation." (Doc. 44, ID 1042). Gordon believed separating B. and Mr. F. "would protect [B.] from any other real or perceived abuse," and "protect [Mr. F.] from any further allegations." (Id. at 1043). It would also negate any suggestion that B. was "being coerced or intimidated" by her parents in the event that she rescinded or changed her claims. (Id. at 1043-44). "And given the history . . . of [B.'s] violence toward [Mr. F.], it would protect them, the parents, from any physical anger outbursts by [B.] at this time." (Id. at 1044).

With these issues in mind, Gordon told Mrs. F. that she had "two options: that [Mr. F.] could leave the home while the agency was investigating, or that [B.] could leave the home while the agency was investigating." (Id. at 1042). Mrs. F. insisted "My husband is not going to leave the home." (Id.) Gordon asked if she could think of "any other options" to "ensure [B.'s] safety while we're doing this investigation?" "And, [Mrs. F.] said, 'No.'" (Id.).

Gordon also recalled Mrs. F. repeating her decision a second time, stating: "No, [B.] will go. I'm not having [Mr. F.] leave." (Id. at 1045). Mrs. F. then began gathering the children's things in preparation for their stay in respite care.

Mrs. F.'s recollection of the exchange is similar to, but less specific than Gordon's. At her deposition, she testified as follows:

A. Well, like I said, I went into the family room, I sat there for a while and [Gordon] came in. . . . I don't remember the whole conversation, but I know she had said . . . either your husband will have to leave or your kids will. And I stated that I was not going to ask [Mr. F.] to leave his own home.

Q. You considered [Mr. F.] your priority?

A. Yes.

Q. Betsy Gordon told you didn't she that for safety purposes, they considered it important that there be a separation, true?

A. Yes.

Q. And she said, I see the alternatives as the children leaving or [B.] leaving or [Mr. F.] leaving. She said those were the alternatives that she could think of; isn't that true?

A. An ultimatum, yeah.

Q. And she asked you do you see any other options, didn't she?

A. Yes.

Q. Did you offer any other options?

A. I wasn't thinking clearly at the time. No, I didn't, she didn't either.

(Doc. 43, ID 959-60).

Mrs. F. also concedes that she did not expressly object to B.'s removal while speaking to Gordon, Barth, Gandee or anyone else on the scene:

Q. At any time during April 27, 2015, did you say this is wrong, [B.] should stay here with me?

A. No.

(Id. at 965, 960-61).

Mr. F. returned home with A. and D. as Mrs. F. was gathering their belongings. He had been in contact with his wife via text message and already informed the foster children that they would have to leave the house, but assured them everything would be alright. By that point, the Hartlages and a number of other social workers had also arrived at the F. home, and defendants decided to place B. with Mr. and Mrs. Hartlage.

Like his wife, Mr. F. acknowledged during his deposition that he did not object to the removal arrangement outright:

Q. Did you ask [Barth] or [Gordon] to explain what was going on with regard to the placement of the children?

A. When I got in, the kids were leaving. The foster parents were there, all packed up and decisions had been made. . . .

* * *

Q. Did you propose any means by which that safety concern could be addressed?

A. I did not.

Q. And yet, of course, you knew based on what you told me earlier that if [Mrs. F.] remained in the house with the children, it would be a risky and difficult situation?

A. I won't deny that.

* * *

Q. . . . You were about to say my wife made the decision[?]

A. Yeah. [Mrs. F.] had made the decision, people were there, the clothes were packed, the kids were being shuffled off. Am I to publicly undermine my wife? I did not know what was going on, I'm telling you . . . I knew what the system would be, so that wasn't the time to object. The following day when I went to court would be the time to bring up my opinion. That never happened.

(Doc. 42, ID 586, 592-93, 594-95).

The post-removal hearing plaintiffs anticipated "never happened" because Gordon told Barth that Mrs. F. had agreed to B.'s removal into respite care as part of an out-of-home safety plan. And "when a parent voluntarily consents to [removal as part of] a safety plan, 'no hearing of any kind is necessary; hearings are required for deprivations taken over objection, not for steps authorized by consent.'" Smith v. Williams-Ash, 520 F.3d 596, 600 (6th Cir. 2008) (quoting Dupuy v. Samuels, 465 F.3d 757, 761-62 (7th Cir. 2006)).

Defendants contend that they first learned that plaintiffs objected to B.'s removal roughly two weeks later on May 11, 2015, when plaintiffs' attorney contacted Gordon and told her thatMr. and Mrs. F. did not agree with the out-of-home safety plan. Gordon then filed the complaint necessary to trigger a prompt shelter care hearing in Ottawa County Juvenile Court.

Juvenile Court Judge Kathleen Geisler presided over the shelter hearing on May 13, 2015, but did not issue a ruling, as Mr. F. ultimately agreed to leave the home while OCDJFS completed its investigation.

Four months later, plaintiffs filed this suit against Gordon, Barth, and OCDJFS Director Stephanie Kowal, for violating their "right to prompt post-deprivation notice and hearing." (Doc. 1, ID 27).

Discussion

The main issue in this case is consent, as "a parent's voluntary consent to a safety plan obviates the need for any additional due process procedures on the part of the agency seeking to remove the child from a parent's custody." Teets v. Cuyahoga Cty., 460 F. App'x 498, 503 (6th Cir. 2012) (citing Smith, supra, 520 F.3d at 600).

In their motion for summary judgment, defendants assert qualified immunity against plaintiffs' procedural due process claim. They contend first, that Gordon did not violate plaintiffs' constitutional rights because they voluntarily consented to B.'s removal, and second, that no reasonable social worker in Gordon's position would have known, based on plaintiffs' conduct, that they objected to the removal and expected a post-deprivation probable cause hearing.²

Mr. and Mrs. F. seek to rebut the qualified-immunity defense though personal affidavits attached to their brief in opposition to defendants' summary-judgment motion. (See Docs. 79-1, 79-2).

Defendants move to strike those affidavits, claiming they are either: (1) contradicted by plaintiffs' sworn deposition testimony; (2) irrelevant; or (3) both.³ Because defendants look to strike nearly every paragraph of plaintiffs' affidavits on these grounds, I discuss the relevant law first, then apply it to each disputed paragraph.

Sham Affidavit Rule

Defendants first argue Mr. and Mrs. F.'s declarations are mere "sham affidavit[s]"-sworn statements that "directly contradict[], without explanation," their "previous testimony." Aerel, S.R.L. v. PCC Airfoils, ...