Case Information
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
SUSAN CHEN, et al., CASE NO. C16-1877JLR Plaintiffs, AMENDED ORDER GRANTING IN PART AND DENYING IN v. PART STATE DEFENDANTS’ MOTION FOR SUMMARY NATALIE D’AMICO, et al., JUDGMENT Defendants.
I. INTRODUCTION
Before the court is Defendants Washington State Department of Social and Health Services (“DSHS”), Bill Moss, Kimberly R. Danner, and Jill Kegel’s (collectively, “State Defendants”) motion for summary judgment. (MSJ (Dkt. # 189).) Plaintiffs Susan Chen and J.L., a minor child, filed a response. (Chen Resp. (Dkt. # 204).) Plaintiff Naixiang Lian joins Ms. Chen and J.L.’s response. [1] (Lian Resp. (Dkt. # 201).) State //
*2 1 Defendants filed a reply. (Reply (Dkt. # 219).) The court has considered the motion, the parties’ submissions concerning the motion, the relevant portions of the record, and the applicable law. [2] Being fully advised, the court GRANTS in part and DENIES in part State Defendants’ motion as set forth below.
II. BACKGROUND This case involves a dispute about the removal of a minor child, J.L., from his parents’ custody. J.L.’s parents, Ms. Chen and Mr. Lian, initially brought claims against defendants affiliated with the City of Redmond (the “City Defendants”) and a number of DSHS officials (“State Defendants”). ( FAC (Dkt. # 96) ¶¶ 132-286.) The court granted summary judgment in favor of the City Defendants on May 24, 2019. ( See 5/24/19 Order (Dkt. # 170) at 60.) The remaining State Defendants—Kimberly Danner, Bill Moss, Jill Kegel, and DSHS— now move for summary judgment on Plaintiffs’ remaining claims. [3]
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*3 1 J.L.’s Hospital Visit and the Child Protective Services (“CPS”) Referral On October 7, 2013, [4] Ms. Chen took J.L. to see Dr. Kate Halamay at Pediatric Associates Inc., P.S. (“Pediatric Associates”). (RED00351-53. [5] ) Dr. Halamay had seen J.L. previously. ( See, e.g. , RED00339 . ) According to the notes from the October 7 appointment, J.L. had been experiencing abdominal pain for around six weeks. (RED00351.) Dr. Halamay recommended that Ms. Chen take J.L. to the Gastroenterology (“GI”) department at Seattle Children’s Hospital (“SCH”), but Ms. Chen declined, stating that “she has seen them for the past 14 months and they ‘have not done anything for [J.L.]’” (RED00352.) Dr. Halamay’s notes show that J.L. visited the SCH GI department only once in the prior year. ( Id. ) Ms. Chen then asked Dr. Halamay to order a number of labs, but Dr. Halamay refused because she was “unfamiliar with several of them and would not know how to interpret them.” (RED00353.)
On October 19, 2013, Ms. Chen and Mr. Lian took J.L. to Dr. Julie Ellner at Mercer Island Pediatrics, in part hoping that Dr. Ellner would order the labs they were seeking. ( See RED00107; 1st Chen Decl. (Dkt. # 131) ¶ 27-28.) Dr. Ellner’s notes state that Ms. Chen was worried that J.L. has a “severe problem with kidney or liver,” that he was losing weight, and was eating poorly. (RED00107.) Ms. Chen told Dr. Ellner that J.L. had laboratory tests at a hospital in New York, as well as an ultrasound, which showed that there was something wrong with J.L.’s liver. ( Id. ) However, Ms. Chen did not bring the lab results to Dr. Ellner; nor was she able to remember the doctor or the hospital where the tests were performed. ( Id. ) Dr. Ellner referred J.L. to the emergency room. ( Id. )
Later that day, instead of going to the emergency room, Ms. Chen took J.L. to Pediatric Associates. ( See RED00356-58; D’Amico Decl. (Dkt. # 107) ¶ 3h, Ex. H (“CPS Docs”) at RED00050-51.) Similar to Dr. Ellner, Dr. Roberta Winch at Pediatric Associates told Ms. Chen to take J.L. to emergency care. (RED00358 (“IT IS VERY IMPORTANT [J.L.] BE SEEN FOR FURTHER EVAL IN THE ED [emergency department] AT SCH. I RECCOMEND [sic] THEY GO NOW. PARENTS AGREED TO BE SEEN AT SCH ED AND SAID THEY WILL GO THERE NOW.”).) Ms. Chen says that she did not understand Dr. Winch’s instruction. ( 1st Chen Decl. ¶ 27.) Instead, Ms. Chen took J.L. to SCH’s urgent care to have lab work done. ( Id. ; RED00853-55.)
Ms. Chen returned to SCH urgent care on October 20, 2013, to pick up J.L.’s lab work. (1st Chen Decl. ¶ 28.) Once there, doctors told Ms. Chen that J.L.’s lab work was abnormal, showing elevated levels of creatinine and blood urea nitrogen (“BUN”). ( Id. ) Ms. Chen then took J.L. to SCH emergency care. ( Id. ; CPS Docs at RED00050-51.) That day, Dr. Russell Migita in SCH’s emergency department examined J.L. and performed additional tests, which showed J.L. improved since October 19, 2013, but that his lab results were still “not normal.” (RED00370-75.) A nurse’s report states that J.L. “seemed irritable, tired, limp.” (RED00805.) It also states that Ms. Chen “refused transport or interpreter services. NOTE!! this child was a no show to the ED yest[erday] for same issues, swollen abd[omen].” ( Id. )
Dr. Migita expressed that J.L. “would benefit from having a coordinated workup that includes endocrinology, gastroenterology, and nephrology.” (RED00374.) However, Dr. Migita discharged J.L. from the hospital on October 20, 2013, because he did not have “hypertensive emergency at this time and d[id] not meet the eminent risk criteria for medical hold.” ( RED00374-75.) Dr. Migita released J.L. on the understanding that Ms. Chen and Mr. Lian would follow-up with J.L.’s primary care provider. (RED00374-75 (noting “Plan” to see Dr. Halamay “[w]ithin 1 to 3 days”).)
On October 23, 2013, Ms. Chen brought J.L. to see Dr. Gbedawo, a naturopathic physician, who saw J.L. nine times between April 2013 and October 2013. (1st Chen Decl. ¶ 31; Gbedawo Decl. (Dkt. # 158) ¶¶ 2, 7, 8.) Dr. Gbedawo understood that J.L. had been to emergency and urgent care a few days earlier and that he had been discharged “as non-emergent.” (Gbedawo Decl. ¶ 8.) At the appointment, Dr. Gbedawo “did not recommend that [Ms. Chen] take J.L. to the emergency department.” ( Id. ) Rather, he recommended that Ms. Chen take J.L. “to a nephrologist and a nutritionist for additional consultations and ordered additional labs and imaging.” ( Id. )
Later that day, Ms. Chen took J.L. to Dr. Halamay, as she had been instructed by Dr. Migita. (1st Chen Decl. ¶ 32.) According to Dr. Halamay’s notes, Ms. Chen “declined [a] phone interpreter although offered several times” and “refus[ed] to make eye contact, t[ook] a long time to answer questions or refuse[d] to answer at all.” (RED00397.) Dr. Hal Quinn at Mercer Island Pediatrics, who had seen J.L. previously, called Dr. Halamay before the appointment. (RED00397; RED00105-06 . ) Dr. Quinn:
expressed great concern about this [patient] as well as family, feels that he his [sic] very sick, concern about failure to thrive, has lost several pounds since April, concerned that family has been going from dr to dr but that pt is not actually receiving appropriate medical attention.
(RED00397.) Dr. Halamay noted that J.L. appeared “[v]ery tired” and continued to “have distended abdomen,” though Ms. Chen said his condition was improving. (RED00397.) Dr. Halamay also noted that Ms. Chen was confused about doctors’ instructions from October 19 and 20 to take J.L. to certain specialists, and that the Chen family “did not go to [ED] as recommended.” ( Id .) Dr. Halamay recommended that Ms. Chen admit J.L. to the hospital “at once” so that he could be seen by renal, endocrine, and GI specialists. ( Id. ) Ms. Chen “refused to take [J.L.] for admission, even after [Dr. Halamay] stated that [she] felt admission was medically necessary given his abdominal distension, weight loss, and worsening lab values compared to those drawn a few weeks ago.” ( Id. ) Dr. Halamay further noted that she spoke with Dr. Metz, a doctor on the SCH Suspected Child Abuse Network (“SCAN”) team, “who again recommended admission for this patient for coordination of care as well as to provide social support for the family and also to determine if SCAN team involvement is necessary.” ( Id. )
Dr. Halamay further recommended to Ms. Chen that they arrange an admission for J.L. to coordinate several services, but Dr. Halamay’s notes indicate that Ms. Chen “refused to take him for admission, even after [Dr. Halamay] stated that [he] felt admission was medically necessary given [J.L.’s] abdominal distension, weight loss, and worsening lab values compared to those drawn a few weeks ago.” ( Id. ) Ms. Chen remarked “‘I have no confidence in [SCH]. . . . I will find my own specialists. This is a waste of time and a waste of money. I have no time to sit in the hospital.’” ( Id. ) Given Ms. Chen’s refusal, Dr. Halamay “again spoke [with] Dr. Metz who agreed that given [J.L.]’s medical issues, if [Ms. Chen] does not agree to admission that it would be appropriate to contact CPS.” ( Id. ) Dr. Halamay then told Ms. Chen again that he felt that J.L.’s admission was medically necessary, and that if Ms. Chen did not admit J.L., that Dr. Halamay would “have to contact CPS in order to ensure that [J.L.] receives proper medical attention.” ( Id. ) Ms. Chen again refused to agree to admission, and according to Dr. Halamay, “became angry, stood up, picked [J.L.] up and left the office.” ( Id. ) Dr. Halamay then contacted CPS, and then contact SCH’s emergency department that J.L. “may be coming in and that he needs to be admitted.” ( Id. )
Ms. Chen recalls that she “felt as though Dr. Halamay and SCH were dismissive and had not provided proper care for [J.L.]” (1st Chen Decl. ¶ 32.) Further, Ms. Chen told Dr. Halamay at the October 23 appointment that she “would not go back to see [Dr. Halamay] anymore” and that she “would make a complaint against her.” ( Id. )
Late on the night of October 23, 2013, a CPS social worker, Kirk Snyder, arrived at Plaintiffs’ home and took J.L. to SCH’s emergency department. ( See RED00814; Plfs’ MSJ (Dkt. # 141) at 7; but see 1st Chen Decl. ¶ 33 (stating that “[a]t [CPS]’s recommendation, we took J.L. to SCH.”).) J.L. was seen on October 24, 2013, by Dr. Virginia Sanders and Dr. Shannon Staples. ( RED00791.) According to Dr. Sanders’s summary, J.L. showed a “failure to thrive . . . [and] gross malnutrition and muscle wasting. Concern for medical cause of wasting vs. neglect.” (RED00792.) J.L. was then admitted to SCH’s “general medicine service” to treat his malnutrition and receive a SCAN consultation. ( Id. ) Dr. Sanders also wrote that “[g]iven mother’s resistance to medical evaluation in this ill child, he is currently in state custody.” ( Id. ) Dr. Sanders instructed lab tests and scheduled a follow-up with Dr. Kate Halamay. (RED00793.)
While at SCH on October 24, 2013, providers gave J.L. Pedialyte even though Ms. Chen told them that “whenever [J.L.] eats sugar his belly gets big.” (RED00927, RED00930.) Ms. Chen also told the SCH providers that J.L. “cannot eat many foods, including carbohydrates or sugar,” but Ms. Chen was unable to “identify any food that he does eat.” (RED00927-28.) In addition, Ms. Chen interfered with providers’ attempts to give J.L. Pedialyte. (D’Amico Decl. ¶ 3c, Ex. C (“D’Amico Report”) at RED00015.) The doctors noted that Ms. Chen was “asked to leave” the hospital room “because of her erratic and obstructionist behavior.” (RED00930.) However, after J.L. consumed several ounces of Pedialyte, J.L. “reaccumulated significant abdominal distention,” which required the doctors to use a catheter to relieve the distention. ( Id. )
J.L. weighed 12.2 kilograms (26.9 pounds) when he was admitted to SCH on October 24, 2013, which is the third percentile. (RED00814.) Carol Barber, a social work consult, reported on that date that the attending physician gave J.L. Pedialyte and J.L. drank it “hungrily.” ( 2d Lo Decl. (Dkt. # 215, 216 (sealed)) ¶ 43, Ex. 42.) She also reported that “[o]n multiple occasions, when medical staff weren’t looking, the //
*9 1 mother took the Pedialyte away from the patient while patient was drinking it. Mother continued to do this despite instruction from medical staff to allow patient to drink.” ( Id. )
Dr. Metz of the CPS SCAN team prepared a report dated October 27, 2019, while J.L. was still being treated at SCH. (RED00813-18.) The report noted that J.L was in the third percentile for weight and third percentile for body-mass index, and that J.L. was
“severely malnourished.” (RED00816-17.) Dr. Metz wrote that “this could potentially be due to his severe state of poor nutrition, although other etiologies must be ruled out.” (RED00817.) After a review of some of J.L.’s medical history, Dr. Metz wrote:
It is concerning that patient’s mother has not followed through with the recommendations by multiple providers, both in the emergency department at [SCH] as well as the outpatient setting. Mother’s behavior seems to be erratic and although she has sought care with multiple providers it does not appear that she is following through with their recommendations. Regardless of [J.L.]’s mother’s intentions, it does seem that there is an element of neglect given his current nutritional status. . . . I think it will be important to continue to obtain records from all of his providers that he has seen to try to further elucidate what medications he has been on. It will be important while [J.L.] is in the hospital to see how he tolerates feeding and how his weight changes given adequate nutrition.
( Id. )
Protective Custody and 72-Hour Dependency Hearing The Seattle Police Department placed J.L. in protective custody on October 24, 2019, “due to immediate concerns of medical neglect,” and transferred custody to “field worker Davis, who was present at the hospital.” (2d Lo Decl. ¶ 3, Ex. 2 (“Danner Case File”) at 2-4 [6] ; see also RED00002 (“J.L. was taken into protective custody by [the Seattle Police Department] and turned over to [CPS].”); RED00814 (“[J.L.] was placed in protective custody by the police department.”).)
Kimberly Danner, a CPS investigator, was assigned to J.L.’s case on the same day. (Danner Case File at 4.) Ms. Danner’s notes state that Ms. Chen “caused so much disturbance that staff had to call police and have her removed from the hospital.” ( Id. at 3.) Another entry in the case file states that “[t]here are significant concerns about mom’s mental health due to her recent behavior at [SCH] as well as at Pediatric Associates.” ( Id. at 4.)
Ms. Danner signed and filed a dependency petition October 25, 2013, in King County Superior Court – Juvenile Court. ( 2d Lo Decl. ¶ 4, Ex. 3 (“Dependency Petition”) at 2, 7.) In addition to largely repeating the medical history for J.L. described in Ms. Danner’s notes, the Dependency Petition also states, in relevant part:
• Due to J.L.’s “extremely distended abdomen,” physicians at both Mercer Island Pediatric and Pediatric Associates on October 19, 2013 “recommended the mother take the child to the hospital immediately. The mother refused and left against Medical Advice. The mother and child returned to [SCH] later that day. The child’s labs had stabilized and the child was discharged.” ( Id. at 4.) • At Pediatric Associates on October 23, 2013, the physician reported that JL’s condition had worsened. “The referrer stated the child needs to be admitted to [SCH] immediately, and she directed parents to do so. Mother did not take the child [J.L.] after this visit, and only did so later in the evening when the parents were directed to take the child to the hospital.” ( Id. ) *11 • “All health care providers who have been contacted by the Department and Law Enforcement to date have reported concerns that the mother is ‘doctor shopping’, seeking medical care that the child does not need, and also not following through on medical care that is recommended by medical care providers.’” ( Id. ) • “Not only did the child suffer life-threatening physical conditions related to malnourishment, but [SCH] physician [sic] reported to the social worker that the child’s delay in speech and social skills may be caused by malnourishment and social deprivation.” ( Id. )
• “The parents continue to be very evasive with questions asked by health care providers and the Department about previous health care.” ( Id. ) • Information is being gathered by “the [SCH] SCAN team to attempt to determine if the medical neglect was a case of mother’s obstructing medical care, or if the maltreatment is related to a more insidious mental health crisis being experienced by the mother. According to [SCH] staff, based on preliminary information gathered, the mother was at the very least obstructing needed medical care for the child.” ( Id. at 5.)
• “At this time, the Department has grave concerns about both parents and their ability to safely parent these two children.” ( Id. )
A 72-hour dependency hearing was held from October 28 to October 30, 2013, to determine if J.L. should be placed in out-of-home care pending a final dependency determination. ( FAC ¶ 59.) An interpreter was present at the hearing ( See, e.g. , 2d Chen Decl. ¶ 4, Ex. 2 (10/28/13 Hearing Tr.) at 2-14.) At the hearing, Ms. Danner testified that J.L.’s health care providers “continue to have concerns about gross malnourishment.” (10/28/13 Hearing Tr. at 4.) Dr. Migita testified that J.L. presented with gross malnutrition. ( 2d Chen Decl. ¶ 4, Ex. 3 (10/29/13 Hearing Tr.) at 2.) Dr. Migita further testified that upon admission to SCH on October 24, 2019, “lab values indicated that he was potentially entering into acute renal failure presumably from lack of fluid intake.” ( See id. ) Dr. Migita stated that while in SCH’s care, J.L. “seems quite content while eating” and did not show signs of spitting out food. ( See id. at 4.) Dr. Migita also testified that J.L.’s behavior could be explained by “reactive attachment disorder, anxiety related diagnoses, or PTSD, as well as autism,” but “we’ve witnessed enough social engagement to become less concerned about autism and more concerned about a reactive attachment issue or an anxiety issue.” ( See id. at 8.)
Dr. Green and Dr. Gbedawo provided testimony in support of Ms. Chen. ( See Barbara Decl. (Dkt. # 191 (sealed)) ¶ 2, Ex. A at 14-15.) Commissioner Mark Hillman stated on the record that he “didn’t even know [J.L.] was autistic until [he] heard from Dr. Green.” (10/28/13 Hearing Tr. at 14.) Commissioner Hillman heard testimony “through the mother’s exhibit, that [J.L.] has not gained any weight for approximately one year.” (2d Chen Decl. ¶ 4, Ex. 1 (10/30/13 Hearing Tr.) at 7.)
Commissioner Hillman further stated that “[t]he autism report that I read, it seemed to support a diagnosis of autism” for J.L. (2d Chen Decl. ¶ 4, Ex. 1 (10/30/13 Hearing Tr.) at 5.) It was “unfortunate that Dr. Migita apparently didn’t get provided with a copy of that report or have access to that report,” and the court was “very hopeful that Dr. Migita will get a copy of that within 24 hours.” ( Id. ) The court addressed the *13 1 potential effect of autism on J.L.’s weight: “It may be because, as an autistic child, he has problems digesting and absorbing food, but I have evidence that since his admission into Children’s Orthopedic Hospital, he has been eating almost every food they give him with no apparent distress and he has gained 1.8 pounds.” ( Id. at 8.) The court did not fault Ms. Chen for taking J.L. to Dr. Green or a naturopath, but based on J.L.’s failure to gain weight for a year, followed by gaining 1.8 pounds in one week at SCH, in addition to his being diagnosed with malnourishment, meant that DSHS had met its burden to show reasonable cause that keeping J.L. with his parents could create substantial harm. [7] ( Id. at 8-9.) The court ordered out-of-home placement and visitations. ( See Barbara Decl. ¶ 2, Ex. A at 20.)
Commissioner Hillman noted uncertainty regarding “whether the mother or father has actually fed [J.L.] all of the food that Dr. Green and Dr. Gbedawo wanted them to be feeding him.” (10/30/13 Hearing Tr. at 12.) However, Commissioner Hillman also stated “[t]he one thing that shelter care will show us, frankly, is whether [J.L.] will continue to show improvement on his weight as well as improvement on the symptoms of his autism . . . the shelter care period is going to show us whether we’re going to have a long-term improvement on his nutrition. Because if Dr. Gbedawo is right, he may show improvement for a little bit and then he’s going to turn around because the GI problems are going to come back in. And if the GI problems come back in outside the parents’ care, well, guess what?” ( Id. at 11-12.)
Post-Hearing Investigation and Foster Care
Ms. Danner did not pass Dr. Green’s autism report to Dr. Migita, but Rosalyn Dilorio with the Attorney General’s Office (“AGO”) emailed Dr. Migita on October 21, 2013, telling him that the court “wanted you to get the Autism report from Lakeside Autism Center. I think Kim is going to get that to you.” (2d Lo Decl. ¶ 8, Ex. 7 at 2.) On November 3, 2013, J.L. weighed in at 14.6 kilograms (32.19 pounds), up from the 12.2 kilograms (26.9 pounds) he weighed on October 24, 2013. (RED01126.)
Ms. Danner completed an investigative assessment and emailed it to, among others, David Peterson and Jill Kegel, on November 15, 2013. (2d Lo Decl. ¶ 6, Ex. 5 (“Investigative Assessment”) at 1.) The Investigative Assessment states that the “[i]nitial referral was [a] 24-hour response referral, made by health care providers, alleging that the parents had been advised by the provider to take the child to the ER immediately, and had not.” ( Id. at 7.) It reports that J.L. “has been diagnosed with Autism by the Lakeside Clinic; however, the attending doctor at Children’s reports that they suspect an
attachment disorder, and also believe that a lot of what the child is experiencing with developmental delays is due to gross malnourishment and social deprivation.” ( Id. at 6.) It also states that the parents “have remained completely unwilling to talk to [the social worker] about anything that doesn’t involve visitation, including their parenting practices.” ( Id. )
On November 12, 2013, Ms. Chen filed a motion for revision of the court’s shelter care order. (Barbara Decl. ¶ 2, Ex. A at 36.) At the time, Ms. Chen did not have access to updated medical records Ms. Chen had requested from Ms. Danner. (2d Chen Decl. ¶ 73.) Ms. Chen hired a new attorney, Linda Lillivek, who appeared on November 14, 2013. (2d Chen Decl. ¶ 74; Barbara Decl. ¶ 2, Ex. A at 42.) Ms. Lillivek requested production of updated medical records from the state, but was unable to obtain them before the 30-day hearing. ( Id. ) Ms. Chen contends that if she had access to the updated records, she could have brought the fact that J.L. lost weight while in foster care to the court’s attention. ( Id. ) DSHS filed its response on November 20, 2013. ( Id. at 44.) In its response, DSHS noted that J.L. was doing much better in SCH’s case, and that he “has gained approximately 1.8 pounds in seven days”. ( Id. at 50.) DSHS represented that shelter care was warranted because “[i]n the care of his parents, [J.L.] was starving, malnourished, wasting, and had potential kidney failure, a compromised liver, abnormal thyroid levels, abnormal white blood cell count, a failure to thrive, and he suffered harm to his brain and development all due to malnutrition.” ( Id. at 58.) The court denied the motion to revise the shelter care order. ( See id. at 72; 2d Chen Decl. ¶ 73.)
In a November 25, 2013, email to Ms. Danner, David Peterson, the DSHS social worker initially assigned to J.L.’s case, acknowledged that J.L. “gained 4lbs while hospitalized at Children’s but has lost 2lbs since going into foster care.” ( See 2d Lo Decl. ¶ 34, Ex. 33 at 4.) Mr. LaRaus responded: “First off we need to figure out how it is that the kid lost 2lbs while in foster care – that really makes it hard to blame mom’s mistreatment for his low weight before he was admitted to the hospital.” ( Id. at 2.) Ms. Danner’s involvement lessened as the case was handed from Mr. Peterson to Ms. Kegel. Ms. Kegel first learned about J.L.’s case when she reviewed Ms. Danner’s Investigative Assessment. (2d Lo Decl. ¶ 2, Ex. 1 (“Kegel Dep.”) at 80:22-81:3.) At her deposition, Ms. Kegel could not remember whether she met with Mr. Peterson during the transfer of the case. ( Id. at 72:24-73:2.) She also reviewed the Dependency Petition and the shelter care order but did not receive a copy of the shelter care hearing transcript. ( Id. at 85:22-25, 87:8-12.) She maintained contact with Dr. Quinn, but does not remember talking to Dr. Migita, Dr. Green, or Dr. Gbedow. ( Id. at 89:20-90:14.)
Ms. Chen asserts that Ms. Kegel was frequently demeaning and uncaring towards Ms. Chen. ( See id. ¶¶ 94-97.) Ms. Chen contends that Ms. Kegel prevented her from attending a neurodevelopmental evaluation for J.L. at SCH, even though several of J.L.’s providers, including Drs. Ivy Chung and Brooke Greiner, advocated that Ms. Chen should be allowed to participate. ( 2d Chen Decl. ¶ 98.) Ms. Chen also alleges that DSHS violated a court order by failing to provide a copy of J.L.’s autism evaluation to SCH providers “within 24 hours,” leading to inaccurate reports. ( See id. ; but see 10/31/13 Hearing Tr. at 5 (Commissioner Hillman stating that he is “very hopeful” that Dr. Migita would receive a copy of Dr. Green’s autism report within 24 hours); 2d Lo Decl. ¶ 8, Ex. 7 (AGO writing in an October 31, 2013, email to Dr. Migita that the court “wanted you to get the Autism Report from Lakeside Autism Center. I think Kim is going to get that to you.”).)
Ms. Chen also contends that Ms. Kegel “did not tell the truth” when she “did not report, for example, that J.L. had lost two pounds in his placement, that DSHS was aware of and communicating about information suggesting I was not to blame, that J.L.’s skills had significantly regressed to the dismay of his providers, or that he had been kicked out of the daycare DSHS put him in, for behavior he did not have before.” ( See 2d Chen Decl. ¶ 102.)
On January 23, 2014, Ms. Kegel wrote to Detective D’Amico and informed her that J.L. was receiving “OT and ABA therapy to assist with the autism . . . his parents are not cooperating with any services and have tried to interfere again.” ( See 2d Lo Decl. ¶ 35, Ex. 34.) On February 3, 2014, Ms. Kegel wrote in a DSHS placement referral that J.L. “has been diagnosed with Autism . . . [he] is receiving Occupational therapy and ABA therapy to address his developmental and autistic needs.” ( See 2d Lo Decl. ¶ 50, Ex. 49.) On February 6, 2014, Dr. Greiner wrote to David LaRaus, copying a number of others including Ms. Kegel, stating that the “doctor’s recommendations lack key services that children with autism receive . . . J.L. has autism and it is not a subtle presentation of autism. He needs and deserves the usual recommended services and supports for treatment of autism.” ( 2d Lo Decl. ¶ 37, Ex. 36 at 3.) Ms. Kegel responded to clarify that the recommendations “are in addition to the services [J.L.] is already receiving. . . . No one is saying that [J.L.] doesn’t have autism or that he needs less intensive services.” ( See id. at 2.) Ms. Kegel responded a second time to clarify that “there have been some questions from providers about whether [J.L.] is on the ASD based on his immediate presentation before them – or if he could have delays that stem from another cause. However [DSHS] is not taking the position at this time that he is not //
ASD, we are just seeking input from all possible sources on appropriate services.” ( See id. )
Ms. Chen contends that J.L. suffered from not receiving proper care for his autism and GI issues while in foster care. (2d Chen Decl. ¶ 45.) She describes a number of behavioral issues J.L. developed while in foster care, including biting, screaming, and hitting. (2d Chen Decl. ¶ 42.) Ms. Chen states that a number of those issues continued after J.L. was returned. ( See id. ) Ms. Chen also contends that DSHS cancelled and
postponed visitations on several occasions and put unfair restrictions on the visits when they did occur. ( See 2d Chen Decl. ¶ 78-89, Ex. 13.) Ms. Chen alleges further that DSHS did “not follow up on the initial concerns of the dependency court.” (2d Chen Decl. ¶ 106.) She further alleges that by November 2013, DSHS was aware of information that raised doubts about whether this was a child abuse case, but did not return J.L. regardless. ( Id. )
Termination of Dependency Petition
Ms. Chen and Mr. Lian separated “because [their] relationship had been broken as a result of J.L.’s removal and related events.” (2d Chen Decl. ¶ 40.) Although Ms. Kegel opposed the move, J.L. was placed in Mr. Lian’s care on July 25, 2014. ( 2d Lo Decl. ¶¶ 18, 20, Exs. 17, 19.) The dependency trial was originally set for June 2014. (2d Lo Decl. ¶ 22, Ex. 21.) On May 24, 2014, the AGO filed a motion to continue the dependency trial because of discovery delays. (Chen Decl. ¶ 77.)
On August 27, 2014, Mr. LaRaus emailed Ms. Chen’s attorney, Lorraine Roberts, and stated that DSHS was not willing to concede that the parents did nothing wrong, but *19 1 if the parents would agree to certain conditions, DSHS would dismiss the Dependency Petition. (2d Lo Decl. ¶ 16, Ex. 15 at 2.) On September 10, 2014, after interviewing Dr. Quinn and other witnesses, Ms. Roberts emailed Mr. LaRaus, conveyed that even the State’s witnesses were supporting Ms. Chen, and demanded Mr. LaRaus dismiss the petition without conditions. (2d Lo Decl. ¶ 18, Ex. 17 at 3.) The State decided to dismiss the Dependency Petition on September 12, 2014. (2d Lo Decl. ¶ 18, Ex. 17 at 2.) Mr. LaRaus told Ms. Roberts that J.L. was returned to his father’s care on July 25, 2014 and that there were no complaints about his care so far, and that Dr. Quinn now admits that his conclusion that Ms. Chen failed to take J.L. to the hospital on October 20, 2013 was incorrect. (2d Lo Decl. ¶ 18, Ex. 17 at 2.) The “founded” determination was changed to “unfounded” shortly thereafter. (2d Lo Decl. ¶ 19, Ex. 18.)
III. ANALYSIS State Defendants now move for summary judgment on Plaintiffs’ remaining claims. ( See generally MSJ.) First, State Defendants argue they are entitled to summary judgment on Plaintiffs’ 42 U.S.C. § 1983 claims for damages (Counts V, VI, and VII) on the grounds that Plaintiffs “suffered no constitutional rights violations, the individual State Defendants enjoy qualified immunity, and the individual State Defendants enjoy testimonial immunity.” [8] ( Id. at 4.) Second, State Defendants argue that they are entitled to summary judgment on Plaintiffs’ state law claims (Counts IX, X, and XI) because *20 1 Plaintiffs “cannot establish the essential elements of their claims.” ( Id. ) Third, State Defendants argue they are entitled to summary judgment on Plaintiffs’ 42 U.S.C. § 1983 claim for injunctive relief (Count XII) because “Plaintiffs have failed to satisfy the requirements of Ex Parte Young and cannot establish entitlement to injunctive relief.” ( Id. ) Plaintiffs’ response states that “Plaintiffs are not disputing dismissal of Count XII (injunctive relief).” (Chen Resp. at 15.) Accordingly, the court GRANTS summary judgment in favor of State Defendants on Count XII.
Before addressing the substance of State Defendants’ summary judgment motion, the court addresses State Defendants’ challenge to several of Plaintiffs’ witness declarations.
A. Motions to Strike Declaration Testimony
State Defendants move to strike the “expert opinions” contained in several of
plaintiffs’ witness declarations on the basis that Plaintiffs have not disclosed any expert
witnesses in this case. (
See
Reply at 2 (citing Green Decl. (Dkt. # 129); Greiner Decl.
(Dkt. # 134); Chung Decl. (Dkt. # 156); Gbedawo decl. (Dkt. # 158); Park-Adams Decl.
(Dkt. # 202); Shapovalova Decl. (Dkt. # 205); Chan Decl. (Dkt. # 209); Sinclair Decl.
(Dkt. # 212); Haase Decl. (Dkt. # 213)).) In response, Plaintiffs argue that these are fact
witnesses who were “directly involved in the relevant events and are testifying from
personal
knowledge.” ( Chen MFL (Dkt. # 221); Chen Surreply (Dkt. # 221-1).)
[9]
Federal Rule of Civil Procedure 26(a)(2)(B) provides, in relevant part, that the
disclosure of an expert witness “must be accompanied by a written report—prepared and
signed by the witness.” Fed. R. Civ. P. 26(a)(2)(B). Rule 37(c)(1) provides that “[i]f a
party fails to provide information or identify a witness as required by Rule 26(a) or (e),
the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37. “The determination of whether a failure to disclose is
justified or harmless is entrusted to the broad discretion of the district court.”
S.F. Bay
Area Rapid Transit Dist. v. Spencer
, No. 04-04632-SI,
Rule 26(a)(2)(A) requires a party to “disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A); see also Fed. R. Evid. 701(a) (“If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is . . . rationally based on the witness’s perception.”). Although “other circuits have held that treating physicians are experts that must be properly disclosed under . . . Rule . . . 26, . . . //
(Dkt. # 223-1).) No response to a motion to strike “shall be filed unless requested by the court.”
See id.
LCR 7(g)(4). Plaintiffs’ surreplies are styled as responses to the State Defendants’
motions to strike contained in their reply brief. ( Chen Surreply; Lian Surreply.)
Nevertheless, they contain argument that Plaintiffs could not have included in their responsive
briefing, and the court finds them helpful to its disposition of the State Defendants’ motions to
strike. Accordingly, the court GRANTS Plaintiffs leave to file their surreplies.
[the Ninth Circuit] has not.”
Hoffman v. Lee,
So long as these witnesses testify solely as percipient witnesses, Plaintiffs are not required to disclose treating medical providers as expert witnesses. See id. (“We hold that [the doctor] testified only as a percipient witness and thus need not have been disclosed as an expert.”). Further, a district court properly admits the testimony of a party’s treating medical provider, even if the party has not disclosed the provider as an expert witness, so long as each of the treating medical provider’s opinions “addresses his [or her] thoughts on particular actions that he [or she] took in his [or her] treatment of [the party].” See id.
Thus, consistent with
Hoffman
, the court will permit Plaintiffs’ disclosed treating
medical providers to testify as percipient witnesses about their diagnosis and treatment of
J.L. and/or Ms. Chen and to any opinions formed during the course of treatment.
See
Haro v. GGP-Tucson Mall LLC
, No. CV-17-00285-TUC-JAS,
//
*23
1
However, a physician’s testimony as a percipient witness does not extend to the
issue of causation. The Ninth Circuit has held that “a physician’s assessment of the cause
of an injury is expert testimony.”
United States v. Urena
,
In sum, the court GRANTS in part and DENIES in part State Defendants’ motion to exclude opinion testimony from Plaintiffs’ disclosed treating medical providers. Although these witnesses may not opine on matters outside of their personal knowledge of Plaintiffs, [10] including causation, these witnesses may testify as percipient witnesses concerning their personal experience with Plaintiffs. [11]
//
//
B. Summary Judgment Standard
Summary judgment is appropriate if the evidence, when viewed in the light most
favorable to the non-moving party, demonstrates “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a);
see Celotex Corp. v. Catrett
,
The moving party bears the initial burden of showing there is no genuine issue of
material fact and that he or she is entitled to prevail as a matter of law.
Celotex
, 477 U.S.
at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can
show the absence of an issue of material fact in two ways: (1) by producing evidence
negating an essential element of the nonmoving party’s case, or (2) by showing that the
nonmoving party lacks evidence of an essential element of its claim or defense.
Nissan
Fire & Marine Ins. Co. v. Fritz Cos.
,
The court is “required to view the facts and draw reasonable inferences in the light
most favorable to the [non-moving] party.”
Scott v. Harris
,
C. Absolute Immunity
Individual State Defendants contend that they enjoy absolute immunity for their “discretionary, quasi-prosecutorial decisions to institute court dependency proceeds [sic] to take custody away from [the] parents.” ( MSJ at 8 (quoting Miller v. Gammie , 335 F.3d 889, 898 (9th Cir. 2003).) They further contend that Ms. Kegel enjoys absolute witness immunity for her declarations “filed in connection with the dependency proceedings.” ( See id. at 9.)
Plaintiffs respond that the “scope of absolute immunity for social workers is
extremely narrow,” and absolute immunity does not apply to discretionary or
investigatory actions. (Chen Resp. at 20 (quoting
Miller
,
In reply, State Defendants contend that Ms. Danner has absolute immunity for her “quasi-prosecutorial” decisions to file petitions for dependency. ( Reply at 8-9.) They further contend that Ms. Kegel enjoys absolute immunity “when filing updates with the court.” ( See id. at 9.)
Absolute immunity protects “individuals performing functions necessary to the
judicial process” from suit.
See Miller
,
The law of absolute immunity for social workers has evolved in recent years. For
example, Ninth Circuit opinions previously held that “social workers are entitled to
absolute immunity for the initiation and pursuit of dependency proceedings, including
their testimony offered in such proceedings.”
See Mabe v. San Bernardino Cty., Dept. of
Pub. Soc. Servs.
,
immunity to social workers for duties beyond which prosecutors were rendered immune
at common law.”
See Safouane
,
The Ninth Circuit, following Supreme Court precedent, has since defined the
categories of activity covered by absolute immunity more narrowly. Under current
precedent, “[a]bsolute immunity is available only if the social worker’s ‘activity or
function’ . . . was part and parcel of presenting the state’s case as a generic advocate.”
Cox v. Dept. of Soc. & Health Servs.
,
However, “decisions and recommendations as to the particular home where a child
is to go or as to the particular foster parents who are to provide care” are “decisions and
recommendations that are not functionally similar to prosecutorial or judicial decisions”
and are “not protected by absolute immunity.”
Safouane
,
Additionally, even in the context of dependency proceedings, social workers are
not entitled to absolute immunity for claims that they “fabricated evidence during an
investigation or made false statements in a dependency petition affidavit that they signed
under penalty of perjury, because such actions aren’t similar to discretionary decisions
about whether to prosecute.”
Costanich v. Dept. of Soc. & Health Servs.
,
The court first concludes that Ms. Danner is absolutely immune from claims based on her actions to initiate the dependency proceedings for both J.L. and L.L., including the decision to sign and file the Dependency Petition. ( Dependency Petition.) Second, Ms. Danner and Ms. Kegel are absolutely immune from claims based on actions they //
took in their roles as in-court advocates for the State in the dependency case.
See
Hardwick
,
However, the State Defendants do not enjoy absolute immunity for (1) their
investigations, (2) allegedly making false statements or fabricating evidence, or (3)
making discretionary decisions related to J.L.’s care while he was in the State’s custody.
See Tamas
,
D. Qualified Immunity
The State Defendants maintain they enjoy qualified immunity because they acted
reasonably when faced with a “complex medical situation” in which several medical
professionals opined that J.L. was failing to thrive, was malnourished, and was
“wasting.” ( MSJ at 9.) In determining whether a government employee is entitled to
qualified immunity, the court must decide: (1) whether the facts that the plaintiff alleges
assert a violation of a constitutional right; and (2) whether the right at issue was “clearly
established” at the time the defendant engaged in the misconduct.
Pearson v. Callahan
,
Further, a state official’s liability under 42 U.S.C. § 1983 is predicated on his
‘integral participation’ in the alleged violation.”
Blankenhorn v. Cty of Orange
, 485
F.3d 463, 481 n.12 (9th Cir. 2007) (quoting
Chuman v. Wright
,
// With the above principles in mind, the court analyzes Plaintiffs’ 42 U.S.C. § 1983 claims in turn to determine (1) whether they assert the deprivation of a constitutional right supported by evidence in the record, and (2) if so, whether the right was clearly established at the time State Defendants allegedly violated it.
1. Due Process
Plaintiffs’ substantive due process and procedural due process claims have substantial factual overlap. Plaintiffs allege that State Defendants “wrongfully initiated, facilitated, maintained, and failed to timely terminate the dependency actions regarding J.L. and L.L.” by “[p]ossessing but failing to disclose . . . information indicating that J.L.’s physical condition was due to medical problems outside Ms. Chen and Mr. Lian’s control . . . information indicating that neither J.L. nor L.L. were at risk of imminent harm in their own home . . . [and] information indicating that J.L.’s condition was not solely attributable to Ms. Chen and Mr. Lian’s care.” ( See FAC ¶ 188, 201.) Plaintiffs contend that by doing so, State Defendants violated Ms. Chen’s and Mr. Lian’s “protected liberty interests under the United States Constitution in the companionship and society of their children, including the right to live with and care for their children . . . .” ( FAC ¶ 192.) Plaintiffs further allege that State Defendants “deprived Plaintiffs of their legal right to due process of law by, inter alia , depriving them of an unbiased tribunal with a full and fair record of evidence pertaining to the dependency proceedings regarding J.L. and L.L.” ( See id. ¶ 204.)
“A claim of interference with the parent/child relationship may be brought as
either a procedural due process claim or a substantive due process claim.” Ninth Circuit
Model Civil Jury Instructions § 3.2 cmt. (citing
Smith v. City of Fontana
,
a. Substantive Due Process
State Defendants contend that they are entitled to qualified immunity on Plaintiffs’
substantive due process claims because nothing they did amounts to “egregious conduct
or the use of force,” or actions that “shock[] the conscience.” (
See
MSJ at 7 (quoting
Ninth Circuit Manual of Model Civil Jury Instructions § 3.2 comment (quoting
Gantt v.
City of L.A.
,
In response, Plaintiffs rely heavily on
Lesley v. DSHS
,
In reply, State Defendants contend that “Plaintiffs have done exactly what the Supreme Court has cautioned against doing when considering due process claims— defining the establish[ed] right at the highest level rather than applied to the facts of the case.” (Reply at 9.) Instead, State Defendants “submit the relevant question . . . is whether all reasonable socials [sic] workers confronted with conflicting medical opinions, including medical opinions from recognized experts in child abuse and neglect would have known their conduct violated plaintiffs’ constitutional rights when they elected to protect the child, even if that resulted in out-of-home placement.” ( Id. ) State Defendants argue that “[q]ualified immunity exists for exactly cases like this one. . . . It is undisputed J.L. had serious medical conditions, that he had lost weight over the course of a year, that his bodily functions were abnormal, and that numerous medical care providers expressed serious concerns about his well-being.” ( See id. ) “It is further undisputed that J.L.’s weight climbed while he was in the hospital and, with a brief exception of fluctuation, trended upward throughout his time in foster care.” ( See id. at 9-10.)
“[T]o establish a substantive due process claim a plaintiff must . . . show a
government deprivation of life, liberty, or property.”
Costanich
,
Portions of Plaintiffs’ substantive due process claims are barred by the fact that Ms. Danner or Ms. Kegel were not involved in the alleged conduct, and by absolute immunity. See supra § III.C. As to the initial seizure of J.L., it was done by the Seattle Police Department, Ms. Danner was not yet on the case, and Ms. Kegel had not yet been hired by DSHS. ( Danner Case File at 2-4; RED00002 (“J.L. was taken into protective custody by [the Seattle Police Department] and turned over to [CPS].”); RED00814 (“[J.L.] was placed in protective custody by the police department.”).) Furthermore, as discussed above, Ms. Danner’s decision to file a Dependency Petition and advocate for dependency before the court is covered by absolute immunity. See supra § III.C.
Accordingly, the conduct that remains for the court to evaluate through the lens of qualified immunity is limited to Ms. Danner’s and Ms. Kegel’s investigations and discretionary decisions regarding J.L.’s placement and care while in DSHS custody. With that in mind, the court concludes that even viewed in the light most favorable to Plaintiffs, Plaintiffs have not submitted evidence of State Defendants’ conduct that rises to the level of a substantive due process violation.
Ms. Danner originally became involved with Plaintiffs’ family when she was obligated to respond to three salient facts: (1) several medical providers who directly treated J.L., in the span of a few days, found J.L., a three-year-old boy, with a “distended abdomen” (RED00397) and “gross malnutrition and muscle wasting” (RED00792); (2) on October 23, 2013, Ms. Chen “refused to take [J.L.] for admission, even after [Dr. Halamay] stated that [she] felt admission was necessary given his abdominal distension, weight loss, and worsening lab values” (RED00397); and (3) even after J.L. went to the hospital, Ms. Chen had to be asked to leave the room “because of her erratic and obstructionist behavior” (RED00930). Ms. Danner responded to several medical professionals that all agreed that J.L. faced a life-threatening medical emergency and that Ms. Chen was an obstacle to J.L. receiving the potentially life-saving care he needed. Under the circumstances, the court concludes that no reasonable jury could conclude that Ms. Danner’s actions “shock the conscience.”
Plaintiffs make a number of allegations to support their substantive due process claim against Ms. Danner. First, they allege that after the 72-hour hearing, Ms. Danner “did not conduct an investigation consistent with DSHS policies and procedures or that addressed the Court’s concerns.” ( See Chen Resp. at 6.) Plaintiffs contend that Ms. Danner’s Investigative Assessment “largely repeated the same allegations identified in the [Dependency Petition] and concluded that the allegations of Negligent Treatment or Maltreatment of J.L. were founded.” (Chen Resp. at 6 (citing 2d Lo Decl. ¶¶ 4, 7, Exs. 3, 6).) Second, Plaintiffs contend that Ms. Danner failed to deliver the autism report to Dr. Migita, who did not have the report prior to his testimony at the 72-hour hearing, and did not arrange for Dr. Migita to speak with Dr. Green or the parents. ( See Chen Resp. at 6-7.) Third, Plaintiffs contend that Ms. Danner stated that J.L. gained almost two pounds while in the hospital, and “continues to gain weight in foster care,” when in fact J.L. lost two pounds in four days while in SCH’s care, and “lost another 1.5 lbs. by November 20,” 2013, while in foster care—despite Commissioner Hillman’s interest in J.L.’s weight in out-of-home care, and Ms. Danner’s admission that it would be important to note that J.L. lost weight in foster care. ( See Chen Resp. at 7.)
Although Plaintiffs’ allegations raise questions about Ms. Danner’s investigation, the court finds that even viewing the facts in the light most favorable to Plaintiffs, no reasonable jury could conclude that Ms. Danner’s conduct “shocks the conscience.” Ms. Danner’s Investigative Assessment was completed roughly two weeks after the 72-hour dependency hearing. ( Investigative Assessment at 1.) The assessment included J.L.’s autism diagnosis, but also stated that the provider at SCH suspected an attachment disorder, and that J.L.’s health issues are “due to gross malnourishment and social deprivation.” ( See id. at 6.) Although Plaintiffs take issue with the SCH provider’s diagnosis, they do not explain how including providers’ competing views in Ms. Danner’s Investigative Assessment constitutes “egregious” conduct by Ms. Danner that “shocks the conscience.”
Second, although Ms. Danner did not directly present the Lakeside Autism Report to Dr. Migita, Dr. Migita was made aware of the report the day after the hearing concluded. Ms. Dilorio of the AGO emailed Dr. Migita on October 21, 2013, telling him that “the court ‘wanted you to get the Autism report from Lakeside Autism Center. I think Kim is going to get that to you.’” (2d Lo Decl. ¶ 8, Ex. 7 at 2.)
Third, SCH records show that J.L.’s weight when admitted to SCH on October 24,
2013 was 12.2 kilograms, increased to 14.6 kilograms on November 3, 2013, then
decreased to 13.7 kilograms by November 7, 2013. (2d Lo Decl. ¶ 45, Ex. 44.)
However, there is no evidence that Ms. Danner’s potentially inaccurate statement in the
Investigative Assessment shows a “deliberate indifference to a known or so obvious as to
imply knowledge of, danger.”
Tamas
,
without merit, because Ms. Danner’s Investigative Assessment was already complete at that time. ( See Investigative Assessment.)
Additionally, Ms. Chen’s own exhibit at the shelter care hearing showed that J.L. had not gained any weight for an entire year prior to the shelter care hearing. ( See 10/30/13 Hearing Tr. at 7.) Moreover, Plaintiffs do not dispute that they weighed J.L. during visitations, and thus his weight was not a secret that Ms. Danner or Ms. Kegel was failing to disclose. ( See generally Chen Resp.)
Plaintiffs also assert that Ms. Kegel violated their substantive due process rights by failing to conduct an adequate investigation and by failing to share objective evidence of J.L.’s condition with his parents. ( See Chen Resp. at 7). Plaintiffs also contend that Ms. Kegel failed to heed the advice of doctors and therapists who had worked with J.L. ( See Chen Resp. at 8). Third, Plaintiffs contend that Ms. Kegel failed to provide Ms. Chen with medical records from SCH. ( See Chen Resp. at 3.). Fourth, Plaintiffs argue that Ms. Kegel failed to ensure J.L. was doing well in foster care and ignored signs that he was not. ( Chen Resp. at 12).
Like Plaintiffs’ allegations against Ms. Danner, the court concludes that no reasonable jury could conclude that Ms. Kegel’s alleged conduct violates Plaintiffs’ substantive due process rights. The evidence Plaintiffs have submitted shows, at most, that Ms. Kegel did not fully investigate J.L.’s health conditions with all of J.L.’s multitude of health providers—many of whom had competing views. Additionally, even if the court credits Ms. Chen’s testimony that J.L.’s condition declined while in State //
custody, it does not follow that Ms. Kegel was “deliberately ignorant” of imminent danger to J.L.
The court further concludes that even if there was a genuine dispute of material
fact about a substantive due process violation, Plaintiffs have not met their burden to
persuade the court that a substantive due process right as Plaintiffs describe it is clearly
established. Plaintiffs’ reliance on
Lesley
is misplaced. (
See
Chen Resp. at 15, 27 (citing
Lesley
,
More importantly,
Lesley
is no longer—and likely never was—good law with
respect to qualified immunity. In a subsequent case in the same court, the court declined
to follow
Lesley
because it believes “that it is contrary to United States Supreme Court
precedent requiring that a clearly established constitutional right be established with
particularity based on prior decisional law.”
Petcu v. State
,
Aside from Lesley , Plaintiffs do not cite to a single case in which a court has held that a social worker was not entitled to qualified immunity for a substantive due process claim based on allegations like those before the court here. ( See generally Chen Resp.) At the time Ms. Danner and Ms. Kegel took on this case, there was no clearly established substantive due process right to the return of one’s child subsequent to a court’s reasonable cause finding.
Plaintiffs also rely on
Wallis v. Spencer
,
The facts of Wallace are far afield from the facts in this case, and they cannot be lumped together neatly as two cases in which “investigators relied on weak and suspect evidence to justify removal of [a] child.” ( See Chen Resp. at 22.) Here, in contrast to Wallace , J.L. was removed from his parents’ custody not by the State Defendants but by the Redmond Police Department, and based on reports from several different medical providers who had evaluated J.L. in person. RED00002 (“J.L. was taken into protective custody by [the Seattle Police Department] and turned over to [CPS].”); RED00814 (“[J.L.] was placed in protective custody by the police department.”).) Additionally, unlike in Wallis , here DSHS acted in response to a valid court order finding reasonable cause after a three-day hearing with testimony from all sides.
For the reasons stated above, the court concludes that the State Defendants are entitled to summary judgment on Plaintiffs’ substantive due process claims on the basis of qualified immunity.
//
b. Procedural Due Process
Parents have a procedural due process claim where “a state official removes
children from their parents without their consent, and without a court order, unless
information at the time of the seizure, after reasonable investigation, establishes
reasonable cause to believe that the child is in imminent danger of serious bodily injury,
and the scope, degree, and duration of the intrusion are reasonably necessary to avert the
specific injury at issue.”
Keates v. Koile
,
State Defendants are entitled to qualified immunity with respect to Plaintiffs’
procedural due process claims because “information at the time of the seizure, after
reasonable investigation, establishe[d] reasonable cause to believe that [J.L. was] in
imminent danger of serious bodily injury, and the scope, degree, and duration of the
intrusion [were] reasonably necessary to avert the specific injury at issue.”
See Keates
,
Plaintiffs were also represented by counsel in filing a motion for revision of shelter care order and up to the point where the State decided to drop the case. ( See Barbara Decl. ¶ 2, Ex. A at 36; 2d Lo Decl. ¶ 18, Ex. 17.) Plaintiffs complain of delays, //
but the court is aware of no authority under which a short continuance constitutes a due process violation.
Plaintiffs’ remaining allegations that touch on procedural due process involve allegations that State Defendants made false statements or omitted key information in their presentations to the court. ( See generally Chen Resp.) As discussed above, Ms. Danner and Ms. Kegel are entitled to absolute immunity for their advocacy for the State before the court in the dependency case, unless they deliberately fabricated evidence. See supra § III.C. Plaintiffs contend that Ms. Danner made “many false or misleading allegations” in the Dependency Petition. ( See Chen Resp. at 3.) However, none rise to the level of deliberate fabrication. The primary false statement on which Plaintiffs base their argument is the statement that Ms. Chen refused to take J.L. to emergency care on October 20, 2013. ( See Dependency Petition (“The mother refused . . . against [m]edical [a]dvice.”).) The statement was ultimately revealed to be incorrect. ( See 2d Lo Decl. ¶ 18, Ex. 17 at 2.) However, no reasonable juror could find that this statement was a “deliberate fabrication” by the State Defendants. First, the statement originated from a medical provider, Dr. Halamay. ( See RED00397 (stating that the Chen family “did not go to [the emergency department] as recommended.”).) Second, Dr. Halamay testified at the shelter care hearing. ( See Barbara Decl. ¶ 2, Ex. A at 16.) Third, the gravity of the statement’s inaccuracy is offset at least in part by the fact that Ms. Chen in fact did refuse to take J.L. to emergency care just three days later, on October 23, 2013, until a social worker arrived at her house. ( RED00397; RED00814; 1st Chen Decl. ¶ 33.) //
For the reasons stated above, the court concludes that the State Defendants are entitled to summary judgment on Plaintiffs’ procedural due process claims on the basis of qualified immunity.
c. Unlawful Seizure
A substantial portion of Plaintiffs’ Fourth Amendment claim is based on State
Defendants’ actions when they “initiated, facilitated, and maintained the dependency
actions regarding J.L. and L.L.” ( FAC ¶¶ 210, 213.) However, as discussed above,
“the initiation and pursuit of child-dependency proceedings [are] prosecutorial in nature
and warrant absolute immunity on that basis.”
Miller
,
Plaintiffs also contend that State Defendants violated their Fourth Amendment rights by taking L.L. and J.L. “from the custody and care of their parents without probable cause and based on false and incomplete evidence.” (FAC ¶ 215.) Plaintiffs assert that “[w]hen children are seized by the state, their claims are assessed under the Fourth Amendment.” (Chen Resp. at 22.)
“The Fourth Amendment guarantees that parents will not be separated from their
children without due process of law except in emergencies.”
Doe v. Lebbos
, 348 F.3d
820, 827 (9th Cir. 2003),
overruled on other grounds by Beltran v. Santa Clara Cty.
, 514
F.3d 906 (9th Cir. 2008) (quoting
Mabe
,
Although Plaintiffs refer generally to the Fourth Amendment right described
above, they do not explain how Ms. Danner or Ms. Kegel’s actions constitute a Fourth
Amendment violation.
See Blankenhorn
,
The 72-hour dependency hearing occurred on October 28-30, 2013, while J.L. was still being treated at SCH for malnourishment and dehydration. At the hearing, Commissioner Hillman concluded that DSHS showed reasonable cause to remove J.L. from his parents’ custody. ( See 10/30/13 Hearing Tr. at 8.) Plaintiffs do not explain how Ms. Danner was an integral participant in any “seizure” of J.L. under these circumstances. ( See generally Resp.) Moreover, Ms. Kegel had not even been assigned to the case at the time of the dependency hearing. ( Kegel Dep. at 80:22-81:3.)
To the extent Plaintiffs’ theory—unexplained in their briefing—is that Ms. Danner and Ms. Kegel “seized” J.L. after he was already lawfully in state custody by court order, by failing to disclose information that tends to show that Ms. Chen was mistreating J.L. less than the evidence originally showed, the court will not entertain it. Plaintiffs do not provide any authority under which this alleged conduct constitutes an unlawful seizure under the Fourth Amendment, and the court is aware of none. Accordingly, the State Defendants are entitled to summary judgment on qualified immunity grounds with respect to Plaintiffs’ Fourth Amendment claim.
Having concluded that Ms. Danner and Ms. Kegel are entitled to absolute immunity for their advocacy in the dependency proceedings, and qualified immunity on all three of Plaintiffs’ 42 U.S.C. § 1983 claims, the court GRANTS summary judgment in favor of State Defendants on all of Plaintiffs’ Section 1983 claims. [12] E. Plaintiffs’ State Law Claims
1. Negligent Investigation
There is no common law cause of action for negligent investigation under
Washington law
. Ducote v. State, Dep’t of Soc. & Health Servs.
,
[U]pon the receipt of a report concerning the possible occurrence of abuse or neglect, the law enforcement agency or the department must investigate and provide the protective services section with a report in accordance with chapter 74.13 RCW, and where necessary to refer such report to the court.
RCW 26.44.050. The Washington Supreme Court further held that “the duty to use
reasonable care in investigating allegations of child abuse is owed to a child’s parents,
even those suspected of abusing their own children.”
Tyner
,
“A negligent investigation claim is available only when law enforcement or DSHS
conducts an incomplete or biased investigation that ‘resulted in a harmful placement
decision.’”
McCarthy v. Cty. of Clark
,
“A negligent investigation may be the cause in fact of a harmful placement even
when a court order imposes that placement.”
McCarthy
,
In addition to concealment of a material fact, “negligent failure to discover information may subject the State to liability even after adversarial proceedings have begun.” Id. at 1156. In Tyner , the court reversed a grant of summary judgment for a social worker where the social worker determined that the allegations against the plaintiff were unfounded, concluding that the fact that the social worker reached this conclusion was “a fact that might have been relied on by the court in making its decision.” See id. at 1158. The court also found that whether the caseworkers’ alleged failure to “interview collateral sources, and in turn fail[ure] to deliver the information to the court that these sources would have provided” were material facts was a question for the jury. See id. at 1158-59.
State Defendants do not contest that DSHS changed its finding of Ms. Chen’s
medical neglect from “founded” to “unfounded,” in what a State witness described as a
rare occurrence. (
See generally
Mot.; Reply; 2d Lo Decl. ¶ 29, Ex. 28 (“Allison-Noone
Dep.”) at 78:6-81:22.) Accordingly, the court concludes that there are questions of
material fact as to whether a “harmful placement decision” was made when J.L. was
removed from “a non-abusive home.”
See McCarthy
,
State Defendants contend that Commissioner Hillman’s shelter care order operates as a superseding cause of out-of-home placement for J.L. ( See MSJ at 12-13.) Plaintiffs respond that State Defendants failed to present material information to the court. ( See Chen Resp. at 16.) Additionally, Plaintiffs contend that DSHS is liable for negligent investigation after the shelter care order because each time DSHS moved J.L. to a new foster home counts as an additional “harmful placement.” (Chen Resp. at 17.)
Here, viewing the facts in the light most favorable to Plaintiffs, they have identified facts that a jury could deem material prior to Commissioner Hillman’s October 30, 2013, shelter care order. First, a jury could determine that Ms. Danner’s failure to discuss J.L.’s care with his remaining treating providers prior to the shelter care hearing constitutes a material failure to interview collateral sources. Although Dr. Green and Dr. Gbedawo were present at the hearing and testified in favor of Ms. Chen, the court cannot conclude as a matter of law that interviewing J.L.’s other medical providers did not preclude material information from reaching Commissioner Hillman. And while Commissioner Hillman heard testimony from Dr. Green regarding J.L.’s autism, interviews with J.L.’s other providers may have confirmed the autism more clearly before the hearing, and may have changed Dr. Migita’s testimony that suggested medical neglect, not autism, was the cause of J.L.’s medical issues.
Second, the Dependency Petition stated that Ms. Chen refused to take J.L. to the emergency department on October 20, 2013, a determination that ultimately was determined to be incorrect. ( Dependency Petition.) Whether this incorrect determination was due to Ms. Danner’s negligence or to another cause, and whether it was a material fact that would have changed Commissioner Hillman’s determination, are fact questions for the jury.
However, the court agrees with State Defendants that J.L.’s placements in
subsequent foster homes following his initial placement cannot constitute additional
harmful placement decisions. Although Plaintiffs contend that J.L. regressed in foster
care, they make no allegations constituting abuse by the foster parents. (
See generally
Chen Resp.);
M.W.
,
Finally, the court disagrees with State Defendants that an expert witness is
required to determine the standard of care Ms. Danner should have followed during her
investigation of J.L.’s case. ( MSJ at 14.) State Defendants cite to no case that
requires an expert witness for a negligence case against a social worker, and the court
concludes that the jury is capable of deciding whether Ms. Danner conducted “an
incomplete or biased investigation” without expert testimony. (
See generally
MSJ);
Tyner
,
In sum, the court concludes that there a genuine dispute of material fact as to whether Ms. Danner and DSHS made a “harmful placement decision” by removing J.L. from a nonabusive home. The court further concludes that the shelter care order is a superseding cause unless material facts were withheld from the court. As a result, at trial, Plaintiffs must prove that Ms. Danner’s failure to interview additional collateral sources or to provide accurate information regarding the October 20, 2013, emergency department visit were material to Commissioner Hillman’s decision. The court GRANTS in part and DENIES in part the State Defendants’ summary judgment motion with respect to Plaintiffs’ negligent investigation claims.
2. IIED
The burden of proof on an IIED claim is stringent
. See Lyons v. U.S. Bank Nat.
Ass’n
,
//
“The first element requires proof that the conduct was ‘so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’”
Lyons
, 336
P.3d at 1151 (quoting
Robel v. Roundup Corp.
,
Plaintiffs’ IIED claim fails on the first element. Without opining on how Ms.
Danner and Ms. Kegel could have done their jobs better, no reasonable jury could find
that their actions were so outrageous in character, and so extreme in degree, as to go
beyond “all possible bounds of decency.”
See, e.g.
,
Waller v. State
,
//
//
3. Negligent Infliction of Emotional Distress
Negligent infliction of emotional distress is a narrowly construed tort that is
limited to “those individuals who are most likely to be severely impacted by ‘the shock
caused by the perception of an especially horrendous event.’”
Bylsma v. Burger King
Corp.
,
Additionally, a plaintiff must prove: “(1) the emotional distress is within the
scope of foreseeable harm of the negligent conduct, (2) the plaintiff reasonably reacted
given the circumstances, and (3) objective symptomatology confirms the distress.”
Repin
v. State
,
“[T]o satisfy the objective symptomology requirement . . . a plaintiff’s emotional
distress must be susceptible to medical diagnosis and proved through medical evidence.”
Hegel v. McMahon
,
Here, Plaintiffs fail to create a genuine dispute of material fact on two elements.
First, Plaintiffs do not identify an “especially horrendous event” akin to “seeing a crushed
body . . . or hearing cries of pain or dying words.” (
See generally
Resp.) Second,
Plaintiffs cannot prove causation with the evidence submitted to the court. Plaintiffs
provide evidence of objective symptomology from treating providers. (
See, e.g.
, Chan
Decl. ¶ 18 (“Ms. Chen continues to suffer from clinical depression and anxiety.”).)
However, Plaintiffs disclosed no expert witnesses in this case, and therefore are unable to
provide competent causation evidence.
See supra
§ III.A;
see also Urena
, 659 F.3d at
908 (“[A] physician’s assessment of the cause of an injury is expert testimony.”);
Henderson
,
Accordingly, the court GRANTS summary judgment in favor of the State Defendants on Plaintiffs’ claim for negligent infliction of emotional distress.
IV. CONCLUSION For the reasons set forth above, the court GRANTS in part and DENIES in part the State Defendants’ motion for summary judgment (Dkt. # 189); GRANTS summary judgment in full in favor of Defendants Bill Moss and Jill Kegel; GRANTS summary judgment in favor of Defendants Kimberly Danner and Washington State Department of Social and Health Services with the exception of Count IX: Negligent Investigation; GRANTS in part and DENIES in part State Defendants’ motion to strike portions of Plaintiffs’ declarations; GRANTS Ms. Chen’s and Mr. Lian’s motions to file surreplies (Dkt. ## 221, 223); and ORDERS Ms. Chen and Mr. Lian to file the surreplies found at docket numbers 221-1 and 223-3 on the docket within seven (7) days of the date of this order.
Dated this 20th day of December, 2019.
A JAMES L. ROBART United States District Judge
Notes
[1] The court refers to Ms. Chen, Mr. Lian, and J.L. collectively as “Plaintiffs.”
[2] No party requests oral argument ( see MSJ at 1; Chen Resp. at 1; Lian Resp. at 1), and the court finds oral argument unnecessary to its disposition of the motion, see Local Rules W.D. 20 Wash. LCR 7(b)(4). 21
[3] The court has set forth its detailed factual background in several prior orders. ( See, e.g. , 5/24/19 Order at 2-16.) The court focuses here on the facts relevant to the State Defendants’ present motion for summary judgment.
[4] J.L.’s medical history prior to October 2013 is set forth in this court’s prior order on the City Defendants’ summary judgment motion. ( See 5/24/19 Order at 2-4.) 19
[5] Documents cited solely as “REDXXXXX” are sealed documents that were part of 20 Detective D’Amico’s investigative file for the investigation of Ms. Chen. ( 1st Lo Decl. (Dkt. # 132) (attaching unsealed exhibits); Dkt. # 133 (sealed exhibits).) These documents are 21 attached to the first declaration of T. Augustine Lo as exhibits B-L. Otherwise, the court refers to exhibits to the first declaration of T. Augustine Lo as “1st Lo Decl., ¶ XX, Ex. XX,” regardless of whether the exhibits appear at docket number 132 or 133.
[6] Unless otherwise stated, the court cites to the page numbers provided by the court’s electronic filing system.
[7] DSHS also sought out-of-home placement for L.L., J.L.’s brother. ( Dependency Petition.) At the close of the hearing, Commissioner Hillman concluded that DSHS had not met 19 its burden to show reasonable cause that allowing L.L. to remain in his parents’ custody would create a substantial threat, and denied the Dependency Petition with respect to L.L. on that basis. 20 (10/30/13 Hearing Tr. at 6.) However, the court placed conditions on the parents, including that “there will be no medical appointments for [L.L.], unless that appointment is disclosed to the 21 department at least 48 hours in advance, including the time of the appointment and the provider, unless it is a bona fide emergency,” in which case the parents must notify DSHS “where he went, why he went and who he saw within 24 hours after that appointment.” ( Id. at 6-7.)
[8] In a single sentence, State Defendants also contend that Plaintiffs’ 42 U.S.C. § 1983 21 damages claims are time-barred. ( MSJ at 4.) State Defendants include no argument or authority in support of this contention. ( See generally MSJ.) Accordingly, the court does not address it.
[9] Plaintiffs filed motions for leave to file surreplies in part to contend that all of the 21 witnesses whose declarations State Defendants move to strike are fact witnesses who were “directly involved in the relevant events and are testifying from personal knowledge.” ( See Chen MFL (Dkt. # 221); Chen Surreply (Dkt. # 221-1); Lian MFL (Dkt. # 223); Lian Surreply
[10] Accordingly, the court disregards any portions of the treating providers’ declarations that constitute causation testimony. 19
[11] State Defendants also move to strike declaration testimony on the grounds that it is 20 inadmissible speculation, hearsay, or character evidence. ( Reply at 3.) As the contested testimony would not change the court’s rulings on State Defendants’ motion for summary 21 judgment, the court denies State Defendants’ motion to strike declaration testimony on the basis that it is speculation, hearsay, or character evidence, without prejudice to raising the same objections at trial.
[12] Plaintiffs do not make any argument with respect to Bill Moss and do not describe any conduct of his that shows him to be an integral participant in this case. ( See generally Chen Decl.) Additionally, Plaintiffs present no argument that any abstract role Mr. Moss played violated a well-established and specifically defined constitutional right or that Mr. Moss had any role in the allegations that relate to Plaintiffs’ state law claims. Accordingly, the court concludes that Mr. Moss is entitled to qualified immunity on Plaintiffs’ Section 1983 claims, and further concludes that Plaintiffs have not met their burden to show a genuine dispute of fact that Mr. Moss is liable for any of Plaintiffs’ state law claims.