Anderson v. Nebrasks

• Decision Date: 27 September 2018
• Docket Number: 4:17-CV-3073
• Parties: CATHERINE YANG WANG ANDERSON, Plaintiff, v. THE STATE OF NEBRASKA, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

CATHERINE YANG WANG ANDERSON, Plaintiff,
v.
THE STATE OF NEBRASKA, et al., Defendants.

4:17-CV-3073

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

September 27, 2018

MEMORANDUM AND ORDER

This matter is before the Court on the motion to dismiss (filing 261) filed by the State of Nebraska, the Nebraska Department of Health and Human Services (NDHHS), Courtney Phillips, Douglas Weinberg, Jennifer White, Carla Heathershaw Risko, Camas Steuter, and the Hon. Elizabeth Crnkovich (collectively, the State Defendants). The Court will grant that motion in part and deny it in part.

BACKGROUND

The plaintiff, Catherine Yang Wang Anderson (Wang Anderson) is the mother of two girls, X.C.W. and Y.C.W. Filing 154 at 2. Wang Anderson's husband, Bo Wang (Wang) is their father. Filing 154 at 2. X.C.W. was a minor when this case was filed, and Wang Anderson sued both in her own capacity and as "next friend" of X.C.W. Filing 154 at 2. Phillips was the chief executive officer of the NDHHS, which is the state agency responsible for the State's child protection and welfare programs. Filing 154 at 3, 5. Weinberg was the director of the NDHHS Division of Children and Family Services. Filing 154 at 5. Steuter was the administrator of that division's Eastern area. Filing 154 at 6. White was an NDHHS social worker. Filing 154 at 8. Heathershaw Risko

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was an NDHHS attorney. Filing 154 at 18-19. And Judge Crnkovich was a judge of the Douglas County Separate Juvenile Court. Filing 154 at 12.

Very generally, Wang Anderson alleges that X.C.W. was unlawfully made a ward of the State of Nebraska and held by the State against her will. Filing 154 at 2. But it was Y.C.W. who first drew the attention of authorities. According to Wang Anderson, Y.C.W. had an "inappropriate" personal relationship with a teacher at her high school because Y.C.W. was permitted and encouraged to confide in him about personal problems. Filing 154 at 24-28. According to the teacher, Y.C.W. told him she had sexual identity issues. Filing 154 at 35. Wang Anderson blames Y.C.W.'s friendship with her teacher for a "breakdown" in her own relationship with Y.C.W., who reported to school officials on October 8, 2013 that Wang Anderson had threatened her. Filing 154 at 28.

Based on Y.C.W.'s report that she didn't feel safe going home, sheriff's officers removed Y.C.W. from Wang Anderson's residence and took her to Project Harmony for a temporary foster placement. Filing 154 at 33. One of the sheriff's deputies observed that when Wang Anderson answered the door, she was wearing a rubber glove, and suspected that Wang Anderson might be mentally ill. Filing 154 at 29-31. Investigators from the NDHHS, including White, went to Wang Anderson's residence that evening. Filing 154 at 34. According to Wang Anderson, they concluded that it was safe for X.C.W. to remain there. Filing 154 at 34. But then White reported—Wang Anderson says falsely—that "the physical living conditions are hazardous." Filing 154 at 35. So, after X.C.W. went to school the next day, she was also placed in the temporary custody of NDHHS. Filing 154 at 36. X.C.W. and Y.C.W. were placed with the same foster parent, and both girls were evaluated at Project Harmony. Filing 154 at 34, 37, 43.

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A juvenile proceeding was initiated in the Separate Juvenile Court of Douglas County, Nebraska. Filing 154 at 44. The petition alleged—Wang Anderson says wrongly—that X.C.W. and Y.C.W. had been subjected to inappropriate discipline, not provided with safe housing, deprived of proper parental care and support, and that Wang Anderson had been seen acting in a manner consistent with untreated mental health needs. Filing 154 at 44-45. Judge Crnkovich entered an ex parte juvenile court order placing the girls in the temporary custody of NDHHS, then after a hearing continued NDHHS's temporary custody. Filing 154 at 45-46.

Wang Anderson alleges that Judge Crnkovich erroneously found that "reasonable efforts were made to prevent removal" of the girls from Wang Anderson's home, when no such efforts had actually been made. Filing 154 at 45. She also alleges that Judge Crnkovich's decision to keep the girls in foster care was unsupported by the evidence. Filing 154 at 46. She alleges that she was denied a formal hearing, despite her right to one. Filing 154 at 47. And she complains about Judge Crnkovich's appointment of a guardian ad litem for her, asserting that "Judge Crnkovich implicitly or expressly determined that Wang Anderson was incapacitated or incompetent by making this appointment" without a hearing or evidence. Filing 154 at 48.

Wang Anderson claims that while in foster care, both girls began to show signs of "mental, emotional and physical distress" that went unnoted and untreated. Filing 154 at 48-49. Both girls were diagnosed with mental health disorders; Wang Anderson claims the diagnoses were inaccurate. Filing 154 at 52. She also alleges, as a basis for liability, that the girls' mental health providers did not encourage them to communicate with her, and that both girls were told they had a right to refuse contact with her. Filing 154 at 53. X.C.W. was sent to a program for treating eating disorders. Filing 154 at 54. She was

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partially hospitalized, and her time was split between the hospital and her foster home. Filing 154 at 54-55.

At a November 7, 2013 detention hearing, Judge Crnkovich ordered that X.C.W. and Y.C.W. remain in the temporary custody of the NDHHS. Filing 154 at 61. On the suggestion of the girls' therapists, NDHHS—represented by Heathershaw Risko—recommended to the juvenile court that all parental visitation be therapeutic, and Judge Crnkovich agreed. Filing 154 at 57, 61. Heathershaw Risko allegedly represented to the juvenile court that visitation had been supervised, but had been ended early because of "inappropriate behavior" by Wang Anderson." Filing 154 at 61. Wang Anderson denies that. Filing 154 at 61. Wang Anderson also alleges that Y.C.W.'s therapists approved "certain ways of life, behaviors or actions that were inappropriate, morally corruptive, harmful and detrimental. . . ." Filing 154 at 58.

On January 28, 2014, the Douglas County Attorney petitioned the juvenile court to terminate Wang and Wang Anderson's parental rights. Filing 154 at 75. In the meantime, although the juvenile court had ordered therapeutic visitation, Wang Anderson alleges that neither NDHHS nor Heathershaw Risko did anything to arrange such visitation. Filing 154 at 63. And she claims that Heathershaw Risko made a misrepresentation to the juvenile court that resulted in visitation being suspended. Filing 154 at 78-79. Wang Anderson blames the NDHHS and Heathershaw Risko for failing to provide family therapy. Filing 154 at 70. And she alleges that throughout the girls' foster care, the NDHHS permitted their foster parents to interfere with their communication and visitation with Wang Anderson. Filing 154 at 67.

Hearings were held on the State's termination petitions in March, May, and June 2014, and on June 25 Judge Crnkovich entered an order dismissing the termination petitions, but adjudicating the girls as being juveniles within

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the meaning of Neb. Rev. Stat. § 43-247(3). Filing 154 at 81. And visitation was ordered. Filing 154 at 71, 82. Wang Anderson, however, alleges that Judge Crnkovich denied her due process by not holding the adjudication hearing within 90 days of the girls' removal from the home. Filing 154 at 66.

Meanwhile, X.C.W. had been held out of school during her eating disorder program. Filing 154 at 60. Her condition had deteriorated and more intensive treatment was recommended. Filing 154 at 68. She was placed at the Laureate Psychiatric Clinic and Hospital in Tulsa, Oklahoma. Filing 154 at 73. Eventually, X.C.W. was discharged from Laureate and put into a new foster placement, and she continued treatment for her eating disorder at Children's Hospital in Omaha. Filing 154 at 83-84, 86. Wang Anderson suggested that X.C.W. be fostered with Chinese relatives of hers, but NDHHS refused, and placed her with unrelated foster parents. Filing 154 at 83-84. Wang Anderson claims that these foster parents were unqualified, and that NDHHS should have known that. Filing 154 at 84. She also accuses the State, the NDHHS, Phillips, Weinberg, and Steuter for waiving a regulatory limitation on the number of children that can be placed in a foster home. Filing 154 at 103.

Sometimes, X.C.W.'s foster parents were unable to take her to Children's, so transportation was provided by Camelot Transportation. Filing 154 at 89. She rode with other passengers, some adult men. Filing 154 at 89. According to Wang Anderson, X.C.W. was "lured, sexually abused and sexually exploited" by another passenger. Filing 154 at 90. Or, to be more specific, a juvenile court filing indicates that the two had exchanged telephone numbers and texted one another, and eventually X.C.W. sent him a nude picture of herself and expressed romantic feelings toward him. Filing 154 at 90.

At this point, the permanency objective for X.C.W. was still reunification. Filing 154 at 92. But Judge Crnkovich ordered that school records and

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information should be provided to Wang Anderson and Wang only through the family permanency specialist—essentially, preventing Wang Anderson from communicating with school personnel. Filing 154 at 92. And Judge Crnkovich ordered Wang Anderson to communicate with all the girls' service providers, including the family permanency specialist, only through counsel or her guardian ad litem. Filing 154 at 92. Eventually, Wang Anderson sought to subpoena the girls' health records, but Judge Crnkovich quashed the subpoenas. Filing 154 at 104, 107. Wang Anderson claims the evidence was insufficient to support the juvenile court's order. Filing 154 at 107.

Meanwhile, Heathershaw Risko suggested to the family permanency specialist that the NDHHS would not be recommending reunification as the...