Thomas v. Kaven

• Decision Date: 26 August 2014
• Docket Number: No. 13–2076.,13–2076.
• Citation: 765 F.3d 1183
• Parties: Legina and Todd THOMAS, Plaintiffs–Appellants, v. Mary KAVEN, Ph.D.; Jill straits, Ph.D.; and Anilla Del Fabbro, M.D., in their individual capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

765 F.3d 1183

Legina and Todd THOMAS, Plaintiffs–Appellants,

v.Mary KAVEN, Ph.D.; Jill straits, Ph.D.; and Anilla Del Fabbro, M.D., in their individual capacities, Defendants–Appellees.

No. 13–2076.

United States Court of Appeals, Tenth Circuit.

Aug. 26, 2014.

Laura Schauer Ives, ACLU of New Mexico (Maureen A. Sanders, Sanders & Westbrook PA, Albuquerque, NM, and Matthew Garcia, Garcia Ives Nowara, Albuquerque, NM, with her on the briefs), Albuquerque, NM, for Appellants.

Mark J. Riley (Courtenay L. Keller and Tiffany L. Sanchez with him on the brief) Riley, Shane & Keller, P.A., Albuquerque, NM, for Appellees.

Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges.

TYMKOVICH, Circuit Judge.

Legina and Todd Thomas are parents of M.T., a twelve-year-old girl at the time of the events at issue in this case. The Thomases placed M.T. in the University of New Mexico Children's Psychiatric Center after she revealed suicidal tendencies during a police investigation of a potential sexual assault. Doctors diagnosed her as exhibiting several serious psychiatric problems and recommended a prescription of psychotropic drugs. The Thomases resisted the doctors' diagnoses and recommendations. M.T. was evaluated for several weeks until Mrs. Thomas decided to remove her from the hospital. Concerned about her safety, M.T.'s doctors and therapist placed M.T. on a medical hold and pursued an involuntary residential treatment petition in state court. But, after a seven-day hold, M.T. was released before the involuntary commitment proceedings began.

The Thomases claim the doctors and the hospital violated their constitutional right to direct M.T.'s medical care and their right to familial association. The Thomases allege that the defendants violated their right to familial association when they placed a medical hold on M.T. and when they filed the petition for involuntary residential treatment in state court. The defendants filed a motion to dismiss, asserting absolute and qualified immunity. The district court granted the motion on qualified immunity grounds, and the Thomases appealed.

We agree with the district court that the Thomases have not stated a claim for a violation of their right to direct M.T.'s medical care. But we hold that the Thomases have stated a claim for a violation of the right to familial association for the defendants' placing a medical hold on M.T. and seeking an order for involuntary residential treatment in state court. The defendants cannot establish as a matter of law at this point in the proceedings that the relevant state interests outweighed the Thomases' interest in their right to familial association. Under this standard, some factual development is necessary before the court can determine whether the defendants' actions were justified and they are thus entitled to qualified immunity for this claim.

We therefore AFFIRM in part and REVERSE in part and remand for further proceedings.

I. Background

The relevant events occurred over the course of several weeks during April and May 2010.¹ On April 12, 2010, the Thomases learned that M.T. may have had sexual contact with a friend's older brother in the preceding few days. The Thomases asked the Lea County Sheriff's Department to investigate. M.T. expressed to the investigating officer that she wanted to harm herself, and the officer became concerned she was suicidal. Another officer conducted a suicide prevention screen and found M.T. was at risk of hurting herself. M.T. was transported to a local hospital for an evaluation. There, hospital staff and a representative from the New Mexico Child, Youth, and Families Department (CYFD) became concerned that M.T. would harm herself if sent home. The Thomases allege a CYFD representative told Mrs. Thomas that, if she did not consent to transfer her daughter to a state facility for a mental health evaluation, CYFD would assume custody. The Thomases consented to the transfer and evaluation, and M.T. was taken to the University of New Mexico Children's Psychiatric Center in Albuquerque, five hours from the plaintiffs' home.

On April 13, M.T. was admitted to the psychiatric center. During intake, the plaintiffs explained that, although they were concerned about M.T.'s statements expressing suicidal thoughts, they were inclined to believe she was not truly suicidal and was only trying to divert attention from the incident with her friend's older brother. M.T. told doctors a changing story, first reporting she previously attempted suicide thirty times but then saying she had three attempted suicides. In contrast, the Thomases told doctors that they were unaware of any suicide attempts.

On April 14, M.T.'s treating psychiatrist, Anilla Del Fabbro, spoke with Mrs. Thomas by phone and explained she believed M.T. was suffering from depression and possible schizophrenia and was experiencing hallucinations. Del Fabbro recommended M.T. be placed on a specialized type of psychotropic treatment to treat her depression. Del Fabbro also opined that the treatment would help with M.T.'s academic performance and behavioral issues in school. Mrs. Thomas replied that M.T. had no problems in school and had not experienced hallucinations before. She refused permission for the psychotropic regimen and expressed a desire to explore alternative treatments before the use of medication.

On April 16, Del Fabbro again telephoned Mrs. Thomas to request permission to treat M.T. and reported that M.T. confessed she had been suffering hallucinations for years. Mrs. Thomas refused, reiterating her position that M.T. was being dishonest with her physicians. She also stated she researched the proposed medical treatment on the Internet and was wary of its potential side effects. She faxed Del Fabbro several documents supporting her position that M.T. did not have behavioral problems in school. In light of the Thomases' refusal to allow psychotropic treatment, the defendants determined that M.T. should go to a residential treatment facility upon release from UNMCPC rather than back home. Plaintiffs initially agreed to consider such a plan.

On April 20, Dr. Mary Kaven conducted a psychological evaluation on M.T. Mrs. Thomas was unavailable to participate in person, and was told by Jill Straits, M.T.'s therapist at UNMCPC, that Mrs. Thomas could only receive the complete evaluation in person. Straits did reveal, however, that M.T. was diagnosed with major depressive disorder, borderline personality disorder, and early-onset schizophrenia. Straits further told Mrs. Thomas that doctors believed M.T. had an intellectual disability, and, because M.T. had been diagnosed with petite mal seizures as a child, the combination of the mental disability, schizophrenia, and the seizures may combine to result in M.T. never returning to reality. Mrs. Thomas expressed skepticism and told Straits that M.T. was in the gifted program at school and she had not suffered a seizure since she was a toddler. The summation of the doctors' diagnoses caused Mrs. Thomas to lose faith in the doctors' assessments of M.T.

On April 26, Del Fabbro again called Mrs. Thomas seeking permission to treat M.T. with psychotropics, as well as anti-psychotic medication and melatonin supplements. Mrs. Thomas refused permission and asked for a fax of the psychological evaluation. Del Fabbro informed her the evaluation would only be provided in person.

On April 27, Straits contacted CYFD to express concern about plaintiffs' disregard of the doctors' recommendations and their refusal to allow administration of psychotropic drugs. The next day, Mrs. Thomas agreed to come to Albuquerque to meet with physicians, promising to listen to their recommendations with an open mind but expressing an inclination to sign M.T. out of the facility. Following this conversation, Straits again contacted CYFD and this time accused Mrs. Thomas of medical neglect for failing to follow the doctors' recommendations.

Two days later, Mrs. Thomas met with defendants to discuss M.T.'s evaluation. Kaven informed her that M.T.'s diagnosis was major depressive disorder with psychosis, borderline traits, and post-traumatic stress. She noted that plaintiffs' medical insurance was very good and would cover almost anything, which prompted defendants to put M.T. on a waitlist for a residential treatment facility without seeking her parents' authorization. Mrs. Thomas told defendants she did not believe M.T. was suicidal or experiencing hallucinations and again declined to consent to psychotropic medical treatment. Del Fabbro informed Mrs. Thomas the defendants did not believe she was competentto make medical decisions on her child's behalf. Fearing that Mrs. Thomas would remove M.T. from the hospital, on April 29, Del Fabbro placed M.T. on a medical hold so that Mrs. Thomas could not obtain her release that day. ²

The next day, Del Fabbro reported the Thomases to CYFD for medical neglect for failure to consent to psychotropic treatment for M.T.'s psychosis. On May 4, the defendants' petition for involuntary residential treatment was filed in state court in order to confine M.T. at UNMCPC for a period not to exceed sixty days.³ The hospital notified the Thomases that the hearing would take place in Bernalillo County Second Judicial District Court on May 10.

On May 5, Straits telephoned Mrs. Thomas to tell her to pick up her daughter immediately because the Thomases' insurance carrier would no longer cover the costs of M.T.'s hospitalization. The defendants concluded there was an adequate safety plan in place to prevent imminent harm to M.T. They discharged M.T. on May 6 and abandoned the involuntary commitment petition. On May 7, despite the discharge, Kaven again reported the plaintiffs to CYFD for medical neglect for not believing the diagnoses and refusing to allow administration of psychotropic drugs. Nothing came of the report, and M.T. returned to school and experienced no further problems arising from the...