Winters v. Kan. Dep't Of Soc. And Rehab.

KATHERINE WINTERS, Plaintiff,

v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATIONSERVICES, et al., Defendants.

Case No. 10-2181-JAR-DJW

UNITED STATED DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: January 19, 2011

MEMORANDUM AND ORDER

On April 8, 2010, Katherine M. Winters filed a pro se civil rights Complaint against the following defendants: (1) Kansas Department of Social and Rehabilitative Services ("SRS"), (2) Don Jordan, (3) Christina Hernandez, (4) Carolyn Godinez, (5) Brenda Fatzer, (6) Christina Hicks, (7) Angela Webb, (8) State of Kansas, (9) Vicki Buening, (10) Assistant District Attorney for Johnson County ("ADA") Don Hymer, (11) Johnson County, Kansas, (12) Dennis Stanchik, (13) CASA, (14) Betsy Bautz, (15) Lois Rice, (16) KVC Behavioral Healthcare, Inc. ("KVC"), (17) B. Wayne Sims, (18) Kyle Kessler, (19) Brenda Soto, (20) Megan Edmonds, (21) Daniel Bartelli, and (22) Lisa Claudel. Magistrate Judge David Waxse granted plaintiff's motion to proceed in forma pauperis.

Defendants filed motions to dismiss (Docs. 7, 9, 32, 34), and on August 5, 2010, after being granted leave of court, plaintiff filed an Amended Complaint, alleging federal civil rights and state law tort claims surrounding the Child in Need of Care ("CINC") and adoption proceedings of her grandchildren, conducted in Johnson County, Kansas District Court. The Amended Complaint names the following defendants: (1) SRS, (2) Jordan, (3) Hernandez, (4) Godinez, (5) Fatzer, (6) Hicks, (7) Webb, (8) State of Kansas, (9) ADA Hymer, (10) Stanchik, (11) CASA, (12) Bautz, (13) Rice, (14) KVC, (15) Sims, (16) Kessler, (17) Soto, (18) Edmonds, (19) Claudel, and (20) Judge Kathleen Sloan. "An amended complaint supersedes the original complaint and renders the original complaint of no legal effect."¹ Consequently, motions filed in response to the original Complaint are now moot. Furthermore, because defendants Buening, Bartelli, and Johnson County, Kansas are not named in the Amended Complaint, they have been voluntarily dismissed.

This matter is before the Court on motions to dismiss the Amended Complaint filed by the following defendants: Judge Sloan, the State of Kansas, ADA Hymer and Buening (Doc. 66); Jordan, Godinez, Fatzer, Hicks, and Webb (Doc. 70); CASA, Rice, and Bautz (Doc. 78); SRS (Doc. 80); and KVC Behavioral Healthcare, Inc., Sims, Hernandez, Kessler, Soto and Edmonds (Doc. 86). Also pending is the KVC defendants' Motion for Order of Disclosure (Doc. 94).

I. Amended Complaint

When construing plaintiff's pro se Amended Complaint, the Court bears in mind that pro se pleadings are to be construed liberally and held to a less stringent standard than pleadings drafted by lawyers.² Thus, if a pro se plaintiff's complaint can reasonably be read "to state a valid claim on which the plaintiff could prevail, [the court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements."³ However, it is not "theproper function of the district court to assume the role of advocate for the pro se litigant."⁴ For that reason, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues, "⁵ nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf."⁶ The court need only accept as true the plaintiff's "well-pleaded factual contentions, not his conclusory allegations."⁷

This lawsuit arises out of events that took place in the CINC case regarding plaintiff's three grandchildren, J.H., C.W., and W.N., and in the adoption case regarding one of these grandchildren, C.W. Both cases were before Judge Sloan in the District Court of Johnson County, Kansas. Plaintiff's forty-two page Amended Complaint includes a laundry list of allegations directed at all parties involved in those proceedings, including that Judge Sloan's rulings and judgments were unconstitutional and unreasonable, that all of the defendants were biased against her and her daughter, that the defendants were corrupt and conspired to interfere with her relationship with her grandchildren, and that certain defendants misrepresented facts to Judge Sloan during the proceedings and failed to investigate plaintiff's allegations or misconduct. The Court does not recite all of these detailed facts, but points to the relevant facts below for the purpose of deciding the instant motions.

On December 28, 2006, Judge Sloan ordered plaintiff's grandchildren be removed from their mother's home as part of the CINC case. At a January 2, 2007 hearing, Judge Sloanordered family placement for all three children. Hernandez, a KVC caseworker, visited plaintiff's home and found it to be "safe and a good placement" for C.W. and W.N., but decided to place J.H. with her paternal grandparents.

On March 3, 2008, Hernandez told plaintiff that the mother's rights to C.W. and W.N. were to be severed, and that KVC would be removing both children from plaintiff's home. Soto and Hernandez told plaintiff that KVC was severing the mother's rights because "KVC would lose their federal funding if they didn't sever the mother's rights." Plaintiff complains that the decision to terminate the mother's parental rights was based on false evidence and a conspiracy among certain parties.

At an April 4, 2008 emergency hearing on plaintiff's motion to block the children's removal from her home, Hernandez testified for two and one-half hours. Plaintiff was permitted to testify for twenty minutes. Plaintiff alleges that various statements made by Hernandez misrepresented the facts of the case and/or constituted perjury. Plaintiff also alleges Soto was "'coaching' and motioning to Hernandez" during her testimony. Plaintiff alleges Hernandez, Bautz, Hymer and plaintiff's attorney pressured her to make statements about the children's mother that plaintiff did not believe to be true, under the hope that plaintiff would be allowed to keep W.N. and C.W. in her home. She refused to do so.

Judge Sloan decided to allow KVC to remove C.W. and W.N. from plaintiff's home and approved placement with C.W. and W.N.'s aunt. Plaintiff contends Hernandez's perjury was integral to Judge Sloan's decision to remove C.W. and W.N. from her home. Hernandez later informed plaintiff that the children were being placed in a pre-adoption foster home instead. On April 11, 2008, C.W. and W.N. were removed from plaintiff's home. J.H. was reunited with herfather. Judge Sloan and KVC placed W.N. with his father and approved placement of C.W. with a pre-adoption foster home. Plaintiff was allowed supervised visits with all three grandchildren.⁸C.W. and W.N. lived with plaintiff from January 3, 2007 until April 11, 2008. From "December 28, 2007, " until "July 1, 2010, " her grandchildren were "in Kansas state custody and... under the supervision and placements of KVC."⁹

Plaintiff alleges Judge Sloan demonstrated bias and prejudice when she refused to consider evidence of perjury and falsified documents at the April 4, 2008 hearing, or hold hearings to discuss motions filed by plaintiff and her attorneys regarding the evidence. Plaintiff alleges Judge Sloan did not properly consider her for adoption of C.W. and refused to appoint a new attorney when plaintiff's court-appointed attorney withdrew for health reasons. Plaintiff contends that she attempted to assert her "state given rights, " before Judge Sloan, but that she was reprimanded for doing so. Plaintiff filed a criminal complaint with Hymer to investigate the perjury and falsified documents presented during the April 4, 2008 CINC hearing, but Hymer did not investigate the allegations and refused to file charges.

Plaintiff purports to assert five claims in the Amended Complaint. In Count I, she asserts a claim under 42 U.S.C. § 1983 for violation of her substantive due process rights when defendants failed to observe Kansas law; favored placement of her grandchildren with strangers before family; interfered with and destroyed her relationship with her grandchildren; and failed to allow plaintiff to participate in the consent to adoption proceedings; all of which denied her liberty interest in her relationship with her grandchildren.

In Count II, plaintiff asserts a § 1983 claim for violation of her procedural due process rights when defendants failed to allow her an opportunity to be heard in a meaningful time and in a meaningful manner with respect to the issue of consent to adoption of C.W.

In Count III, plaintiff alleges defendants engaged in a civil conspiracy to permanently interfere with and destroy her ongoing relationship with her grandchildren who were in state custody, for the purpose of maintaining funding, which was not in the best interests of plaintiff's grandchildren. She alleges this interfered with a constitutionally protected liberty interest.

In Count IV, plaintiff alleges abuse of process under Kansas law when defendants misused the legal process for an improper purpose, that is, they effected placement detrimental to the best interests of her grandchildren and violative of plaintiff's fundamental constitutional rights, in order to maintain and maximize federal funding.

In Count V, plaintiff requests declaratory and injunctive relief on her previously-stated claims. She requests a declaration that the removal of C.W. from plaintiff's home and subsequent placement with strangers for adoption was unconstitutional and violated her substantive and procedural due process rights; that any steps taken toward C.W.'s adoption are void; and that any change in his legal custodial status based on these proceedings is void. She also requests a temporary restraining order that will stay any adoption proceedings involving C.W. until the conclusion of this litigation and that he be returned to her care pending resolution of this action.

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