Wilson v. Burns

PAUL WILSON, et al., Plaintiffs, v. HOLLY BURNS, in her official andindividual capacity, et al., Defendants.

4:20-CV-3128

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

June 2, 2021

MEMORANDUM AND ORDER

Paul Wilson and Jessica Anshel filed this action, individually and as guardians and next friends of their minor children, alleging constitutional claims arising from the temporary removal of the children from their home following allegations of domestic abuse. See filing 1-1. The case is currently before the Court on the separate motions to dismiss filed by the Nebraska Department of Health and Human Services and two of its employees (collectively, the NDHHS defendants) (filing 4) and Holly Burns, a mental health practitioner contracted by the Department to provide therapy to the children (filing 11). The Court will grant the defendants' motions.

That doesn't mean the Department is exonerated. It's fairly clear that the Department could have done a better job of handling this family's situation or, particularly, providing a stable situation for these children. But substandard performance isn't a constitutional violation, and the higher standard for alleging a constitutional violation isn't met here, so this case will be dismissed.

I. STANDARD OF REVIEW

A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain detailed factual allegations, but must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For the purposes of a motion to dismiss a court must take all of the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Id.

And to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.

Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiff's claim. See Twombly, 550 U.S. at 545. The court must assume the truth of the plaintiff's factual allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 556. But where the well-pleaded facts do not permit the court to infer more than the mere possibility ofmisconduct, the complaint has alleged—but has not shown—that the pleader is entitled to relief. Iqbal, 556 U.S. at 678.

II. BACKGROUND

Paul and Jessica are the parents of three children—one girl, O.W., and two boys, C.W. and M.W.—who were respectively eight, three, and two years old at the outset of the juvenile court proceeding out of which this case arises. Filing 1-1 at 59. The underlying juvenile court proceeding began in April 2018, when O.W. reported to a teacher at school that she'd seen Paul assault Jessica. Filing 1-1 at 4. Lincoln police contacted Jessica, who admitted that she and Paul had argued although she denied any physical violence. Filing 1-1 at 4. But Paul was arrested and charged with domestic assault and child abuse. Filing 1-1 at 6. Paul ultimately pled no contest to amended charges of assault and disturbing the peace and spent 68 days in custody on the sentence. Filing 1-1 at 6. (The complaint does not indicate what the actual sentence was.)

The day after Paul was arrested, the State moved for an ex parte order of temporary custody in Lancaster County Juvenile Court, alleging that the children were endangered. Filing 1-1 at 4. The affidavit from Lincoln police supporting the motion relied on jail calls in which Paul was told that it had been his daughter who had reported the incident. Filing 1-1 at 5. The children were removed from Paul and Jessica's home the same day and, the next day, the State filed a petition to adjudicate the children pursuant to Neb. Rev. Stat. § 43-247(3)(a). Filing 1-1 at 5-6. Although the complaint doesn't clearly say so, presumably the children were adjudicated, because they remained in the State's custody and were placed in foster care. See filing 1-1 at 6-7.

While Paul was still in jail, Jessica participated in supervised visitation with the children. Filing 1-1 at 7. She also asked to participate in other activities—doctor's appointments, school events, and the State Fair—but theserequests were denied by defendant James Colburn, who was the Department's case manager for their case. Filing 1-1 at 3, 7. At a hearing held on June 20, 2018, the juvenile court accepted the recommendations of the Department and Colburn to continue the children's out-of-home placement. Filing 1-1 at 7. The juvenile court also directed the Department to contact Burns regarding visitation and communicate her recommendations to counsel. Filing 1-1 at 7.

The case progressed to a dispositional hearing on August 1, 2018, at which the juvenile court again continued out-of-home placement. Filing 1-1 at 34-35. The juvenile court found that initial removal from the home had been necessary, and placement outside the home continued to be necessary because "the parents have not yet had an opportunity to engage in rehabilitative services and to ensure appropriate oversight and monitoring of the children's safety." Filing 1-1 at 35. The juvenile court also found that the children's needs for safety, health and well-being were being met, services were being provided in compliance with the case plan, fair progress was being made to alleviate the causes of out-of-home placement, and reasonable efforts had been made to prevent the children's removal from the home. Filing 1-1 at 35.

The primary permanency plan for the children was reunification. Filing 1-1 at 35. But the juvenile court reserved ruling, pending further hearing, on whether the Department had made reasonable efforts to reunify the family. Filing 1-1 at 35. The juvenile court set a deadline for October 4, 2018 to review disposition. Filing 1-1 at 37. And the juvenile court set a permanency planning hearing for May 22, 2019. Filing 1-1 at 37.

The juvenile court directed both Jessica and Paul to complete initial diagnostic interviews with a local mental health clinic, and the Department was directed to make the therapists' recommended treatment and services available to them, including payment if no other funding was available. Filing1-1 at 35-36. Paul was directed to complete a batterer's intervention program as arranged by the Department. Filing 1-1 at 36. Paul and Jessica were each to be provided with supervised visitation as arranged by the Department, and they were not to communicate with one another during visitation. Filing 1-1 at 36. The Department did not recommend joint visitation. Filing 1-1 at 9.

On September 13, 2018, Colburn emailed counsel for the parents and the guardian ad litem indicating that the Department was going to move for a temporary change of placement for O.W., based on Burns' recommendation, "intended to last 30-45 days, with the intention of then returning her to her original placement." Filing 1-1 at 42. It's not clear from the complaint what had happened—the best inference the Court can draw is that O.W. had been moved to respite care from her original foster care placement, and that the "change of placement" was intended to keep her with her respite caretaker for a longer period of time. See filing 1-1 at 10, 40-41. What is clear is that a hearing was held on September 19, at which the juvenile court took up the Department's request for change of placement and Jessica's motion to permit joint visitation. Filing 1-1 at 10. The juvenile court approved the change of placement, permitted joint visitation for M.W.'s birthday on September 28, and deferred ruling on further joint visitation until the October 4 review hearing. Filing 1-1 at 10.

At that hearing, the juvenile court found that the children should remain in their then-separate placements outside the home. Filing 1-1 at 10. The juvenile court also maintained separate visitation as arranged by the Department, and ordered Paul and Jessica to complete additional therapy. Filing 1-1 at 10. Joint visitation was not permitted at that time, "but could begin with ten (10) days' notice" and would be allowed for specific special occasions as approved by the Department. Filing 1-1 at 11-12. Paul and Jessicacontinued with their therapeutic obligations, continued to exercise individual visitation, and exercised joint visitation on special occasions. Filing 1-1 at 13.

In early November, Jessica's counsel contacted Colburn to ask when the Department would be recommending joint visitation. Filing 1-1 at 13. Colburn replied that the Department would move to permit joint visitation later that month. Filing 1-1 at 13, 46. But a few days later, Colburn told the parties the Department's position had changed, because he had heard from therapists (apparently including Burns) that they were opposed to joint visitation. Filing 1-1 at 15, 47. Burns later allegedly opined at a team meeting with Colburn, the guardian ad litem, and counsel that she didn't believe Paul and Jessica were likely to achieve their goals, and that she would wager on police being called to their home because Paul would...