Scharbrough v. S. Cent. Ohio Job & Family Servs.

DUSTON SCHARBROUGH, et al., Plaintiff, v. SOUTH CENTRAL OHIO JOB AND FAMILY SERVICES, et al., Defendant.

Case No. 2:20-cv-4527

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

June 7, 2021

Chief Judge Algenon L. Marbley

Magistrate Judge Chelsey M. Vascura

OPINION & ORDER

This matter is before the Court on the Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 13). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion.

I. BACKGROUND

A. Factual Background

This case arises out of the interactions between Plaintiffs Duston and Cyndi Scharbrough and the child protective services apparatus in Ross County, Ohio from 2017 up to the present. The Plaintiffs allege that the South Central Ohio Job and Family Services ("SCOJFS") agency in Ross County, as well as many of its employees, has violated their rights under federal and state law as it pursued investigations concerning their child, L.S. The Plaintiffs also bring claims against the Ross County Sheriff's Office ("RSCO") and an Assistant Prosecuting Attorney for their involvement.

According to Plaintiffs, the troubling conduct began in February 2018. SCOJFS began an investigation into the Plaintiffs after RSCO received a report that Duston was sexually abusing K.S., one of his daughters from a previous relationship. (ECF No. 1 ¶ 48). In August 2017, the couple had been investigated over domestic violence allegations. (Id. ¶ 37). Because Cyndi had worked for SCOJFS through January 2017, SCOJFS recused itself from the investigation due to a conflict of interest and the matter was handled by SCOJFS in Vinton County. (Id. ¶ 37). In November 2017, the case against them was closed and the allegations were deemed unsubstantiated by SCOJFS-Vinton County.¹ (Id. ¶ 41). On February 27, 2018, a caseworker from SCOJFS contacted Duston about a new investigation. (Id. ¶ 54). Duston expressed concerns that SCOJFS was now handling an investigation into the couple, given the recent recusal and April's previous employment with the agency. (Id. ¶ 54). His concerns were dismissed. (Id.).

Despite the couple's opposition, SCOJFS proceeded with its investigation into the Plaintiffs. The Plaintiffs provided SCOJFS employees with evidence of the family history and the children's recent behavioral issues. (Id. ¶ 60). They also raised concerns that the children's mother had a history of manipulating the children. (Id.). After the other children were removed from custody by an ex parte order in May 2018, a SCOJFS caseworker informed Cyndi that neither Assistant Prosecuting Attorney Ater nor the agency had any concerns with L.S. staying in the home because Cyndi had the capacity to protect L.S. (Id. ¶ 77). SCOJFS conducts weekly meetings in conjunction with Ms. Ater, at which they discuss all children services cases and make all case decisions. (Id. ¶ 58). At least two of the new investigations into Plaintiffs immediately followed these meetings. (Id. ¶¶ 153, 175)

After the other children were removed from Duston's custody, SCOJFS's investigation continued. The agency interviewed the other children, but never contacted the Plaintiffs about the ongoing investigation into the domestic violence allegations. (Id. ¶¶ 94-96). During the continuedinvestigation, the SCOJFS Defendants never visited their home, where they remained with L.S., or interviewed the Plaintiffs about the allegations. (Id. ¶ 105). As a result, the Defendants had no direct knowledge or credible information about L.S.'s living conditions or circumstances as they engaged in decision-making about how to proceed with her case. (Id. ¶ 105). The Plaintiffs also allege that the SCOJFS Defendants had evidence and substantial reasons to believe that the sexual abuse allegations made against Duston were false. (Id. ¶ 106). According to Plaintiffs, the SCOJFS Defendants knew of the results of the SCOJFS-Vinton investigation, where the agency had thoroughly investigated and found the same domestic violence allegations to be "unsubstantiated." (Id. ¶ 109).

Nonetheless, on September 5, 2018, SCOJFS employees showed up to Plaintiffs' home and removed L.S. by an ex parte order. (Id. ¶ 99). They were accompanied by two armed RSCO employees. (Id. ¶ 102). Defendant Radcliff informed Cyndi that L.S. was being removed for her safety because of the sexual abuse allegations against Duston. (Id. ¶ 100). Cyndi offered to enter a voluntary safety plan with SCOJFS instead. (Id.). She also offered to leave the home with L.S. and stay with friends or family, or to permit L.S. to stay with friends or family independently. (Id.). Defendant Radcliff refused all of these options and refused to consider other suitable placements. (Id.). As a result, L.S. was placed in foster care. (Id.) Just before the shelter care hearing on September 6, 2018, the Plaintiffs received a copy of the affidavit used to establish probable cause, which they allege contains false and misrepresented statements. (Id. ¶ 109). After the hearing, Cyndi informed Defendant Radcliff about additional evidence to be considered. (Id. ¶ 111). During this conversation, Radcliff informed Cyndi that the decision to pursue an ex parte removal order was the result of a collective. (Id. ¶ 104). Radcliff also refused to consider Cyndi's parents as a placement option because they lived out-of-state. (Id. ¶ 111).

L.S.'s case continued on. A variety of caseworkers from SCOJFS cycled through the case. The Plaintiffs continued to raise their concerns about the conflict of interest, unconsidered exculpatory evidence, and other deficiencies they saw with the investigation. (Id. ¶¶ 114-15, 123). SCOJFS and its agents dismissed their concerns each time. As the case remained open, the Plaintiffs allege that SCOJFS workers began to threaten them. After Cyndi raised complaints again in December 2018 to Defendant Perry, she alleges that Ms. Perry "proceeded to intimidate, threaten, and coerce Cyndi into forfeiting the Plaintiffs' rights to a trial." (Id. ¶ 124). Ms. Perry told her that going to trial would result in SCOJFS taking permanent custody of the children. (Id.). She offered Cyndi unsupervised weekend visits with L.S. and to begin the Interstate Compact on the Placement of Children ("ICPC") process to place L.S. with Cyndi's parents—if the Plaintiffs stipulated to the dependency. (Id.). These promises and inducements were repeated before the adjudication hearing that took place in January 2019. In fear that SCOJFS would retaliate if the Plaintiffs did not accept, the Plaintiffs stipulated to the dependency of the other children. (Id. ¶ 126). After the stipulation, Cyndi only received two-hour unsupervised visits and the ICPC process to place L.S. with Cyndi's parents was never initiated. (Id. ¶¶ 127, 130-31).

In May 2019, Cyndi was assigned a new caseworker to whom Cyndi again raised her concerns about exculpatory evidence that SCOJFS was not investigating. (Id. ¶ 138). Cyndi also informed the caseworker of her changed circumstances: she had leased an apartment and was living separately from Duston. (Id. ¶ 139). SCOJFS employees advised Cyndi to file a motion to return so L.S. would be returned to her custody. (Id.). They also told her that they would file a letter recommending to the juvenile court that L.S. be returned to Cyndi. (Id.). Cyndi filed her motion on May 14, 2019, and a hearing was set for July 23, 2019. (140). In the interim, SCOJFS returned L.S. to Cyndi's physical custody, approved L.S. to travel to Virginia with Cyndi, and approvedL.S. moving to Virginia. (Id. ¶ 141). On July 23, 2019, the motion was formally granted and the case on L.S. was closed. (Id. ¶ 142).

L.S.'s case would not remain closed, however. In August 2019, Duston was indicted on criminal charges from the sexual abuse allegations. (Id. ¶ 144). As part of his pre-trial release, Duston was not to have contact with anyone under the age of 18, including his children; he has complied with this condition. (Id.). In September 2019, the Plaintiffs got married and informed their caseworker about the marriage. (Id. ¶ 149). After L.S. was returned to Cyndi's custody, Cyndi had continued to maintain multiple residences. (Id. ¶ 143). Cyndi maintains that SCOJFS is aware of this fact, but insists that SCOJFS does not know when she stays at the Plaintiffs' shared apartment. (Id.). In November 2019, their caseworker questioned the Plaintiffs about L.S., including her whereabouts and school enrollment information. (Id. ¶ 151). The Plaintiffs refused to provide information beyond the fact that L.S. did not live with Duston or have any contact with him. (Id.). Plaintiffs also informed SCOJFS that L.S. lived outside the jurisdiction of the Juvenile Court and SCOJFS. (Id.).

Two days later, SCOJFS employees came to Plaintiffs' shared apartment and informed them that another child services case against Cyndi had been opened on the grounds that L.S. was living with and having contact with Duston. (Id. ¶ 153). The Plaintiffs had already denied this allegation and had moved L.S. out of the jurisdiction in summer 2019, with SCOJFS's approval. The Plaintiffs maintained that L.S. did not live with or see Duston, and that she lived outside the jurisdiction of SCOJFS. (Id. ¶ 154). The Plaintiffs accused SCOJFS of harassing them by opening investigations against them, with no new allegations or evidence. (Id.). A search of the apartment turned up no indication that L.S. had been there. (Id. ¶ 155). After the SCOJFS Defendants left the Plaintiffs' apartment, Cyndi found out that they had called her mother in Virginia and soughtinformation about L.S. (Id. ¶ 157). Cyndi's mother did not provide any information. (Id.). SCOJFS employees denied calling Cyndi's mother. (Id. ¶ 158).

In April 2020, the Plaintiffs found that SCOJFS had opened another sexual abuse investigation into Duston in January 2019. (Id. ¶ 161). Duston contacted SCOJFS, who would not tell him the substance of the...