Ayres v. Neb. Dep't of Health & Human Servs.

• Decision Date: 14 May 2018
• Docket Number: 4:17CV3116
• Parties: JILL AYRES, an individual; Plaintiff, v. NEBRASKA DEPARTMENT OF HEALTH & HUMAN SERVICES, A Nebraska Political Subdivision; JOAN WELDON, in her official and individual capacities; BRENDA CHASE, in her official and individual capacities; TALANA SAYRE, in her official and individual capacities; DIANE MARTIG, in her official and individual capacities; PROJECT HARMONY, a Nebraska Non Profit; and SARAH BROCK, in her official and individual capacities; and LANA SAYERS, in her official and individual capacities; Defendants.
• Court: U.S. District Court — District of Nebraska

JILL AYRES, an individual; Plaintiff, v. NEBRASKA DEPARTMENT OF HEALTH & HUMAN SERVICES,A Nebraska Political Subdivision; JOAN WELDON,in her official and individual capacities;BRENDA CHASE, in her official and individual capacities;TALANA SAYRE, in her official and individual capacities;DIANE MARTIG, in her official and individual capacities;PROJECT HARMONY, a Nebraska Non Profit;and SARAH BROCK, in her official and individual capacities;and LANA SAYERS, in her official and individual capacities; Defendants.

4:17CV3116

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

May 14, 2018

MEMORANDUM AND ORDER

This matter is before the Court on the Motion to Dismiss, ECF No. 29, filed by Defendants Nebraska Department of Health & Human Services (NDHHS), Joan Weldon, Talana Sayre, Brenda Chase, and Diane Martig (collectively, State Defendants); the Motion to Dismiss, ECF No. 31, filed by Defendant Project Harmony; and the Findings and Recommendation, ECF No. 33, of Magistrate Judge Michael D. Nelson. For the reasons stated below, Project Harmony's motion to dismiss will be granted; the State Defendants' motion to dismiss will be granted in part; and the Findings and Recommendation will adopted in their entirety.

BACKGROUND

The following facts are those alleged in the Amended Complaint, ECF No. 25, and assumed true for purposes of the Motion to Dismiss.¹

Ayres is a the biological mother of an adult daughter, and the adoptive mother of a 19-year-old daughter, identified in the Complaint as "AA," and a six-year-old daughter, identified as "EA." Id. ¶ 16, Page ID 328. Both adoptive daughters were minors during the time relevant to the conduct alleged in the Complaint. AA was removed at a young age from her biological parents' home and has been diagnosed with "Post Traumatic Shock Disability," "Reactive Attachment Disorder," "Attention Deficit Hyperactivity Disorder," and Schizophrenia. Id. ¶ 17.

During the spring of 2015, "medical provider issues" caused AA to go without her medication for "several days." Id. ¶ 18. Page ID 328-29. During this lapse in her medication, Ayres and several other people reported that AA's behavior and focus improved. Id. The Complaint does not state if or when Ayres resumed AA's medication.

In late August of 2015, Ayres found AA making homicidal threats outside the bedroom of EA and a two-year-old foster child, named in the Amended Complaint as "AF." Id. ¶ 19, Page ID 329. Concerned for the children's safety, Ayres contacted the "Adult & Child Abuse & Neglect Hotline established by the Division of Children & Family Services." Id. ¶ 21. On this call, Ayres asked Hotline staff if Child Protective Services (CPS) would intervene if she brought AA to a treatment facility and then did not pick herup. Id. ¶ 22, Page ID 330. The staff informed Ayres that CPS would charge her with neglect and abandonment if she failed to pick up AA under the circumstances she described. The staff also informed Ayres that CPS would remove her other children if she brought AA home and that "her report had been 'accepted' as an intake for investigation on a dependency case." Id. ¶ 23. On the advice of the Hotline's staff, Ayres took AA to Immanuel Hospital, where she was admitted and placed on antipsychotic medications. Id. ¶ 24. Soon after taking the medication, AA "lost touch with her surroundings and did not know where she was." Id.

Immanuel attempted to place her at Bryan Hospital in Lincoln, Nebraska, but "[t]he Mental Health Board denied her admission." Id. ¶ 25, Page ID 331. After nine days of hospitalization, "Immanuel told Ms. Ayres she needed to pick up AA." Id.

Ayres was unable to find placement for AA in Nebraska, having been told that AA was "too ill" for juvenile facilities and too young for adult facilities. Id. ¶ 27. After leaving Immanuel, AA went to stay with Ayres's adult daughter in Kansas. Id. ¶ 28, Page ID 331-32. Two weeks later, Ayres contacted police in Kansas due to AA's deteriorating mental condition. Id. ¶ 29, Page ID 332. The police took AA into custody and placed her at COMCARE Kansas, a hospital facility for youth with serious emotional disturbances. Id. COMCARE transferred AA to the Osawatomie State Hospital, in Osawatomie, Kansas, the next day. Id.

NDHHS assigned Defendant Sarah Brock, a Child and Family Services Specialist, to investigate the safety of Ayres's children on September 28, 2015. Id. ¶ 34, Page ID 333-34. Brock interviewed Ayres's six-year-old daughter, EA, at her school for approximately ten minutes. Id. Brock undertook no other investigatory measures. Id.,Page ID 334. Based on this investigation, Brock concluded that "Ms. Ayres' home was unsuitable for foster children." Id. ¶ 35.

Defendant Talana Sayre, also a Child and Family Services Specialist with NDHHS, was assigned to investigate possible physical abuse of AF, Ayres's two-year-old foster child. Sayre's conclusions cite only Brock's report of her interview with AE; they do not mention a site visit CPS staff made to AF's daycare. Id. ¶ 36. The Amended Complaint quotes the director of AF's daycare, who describes the visit by CPS staff as lasting only five minutes, and who claims the CPS staff "basically rolled their eyes" when the director informed them that AF always came to the daycare neatly dressed and free of bruises. Id. ¶ 37, Page ID 334-35. The Amended Complaint also states that "Sayre did not talk to or examine either AF or her infant brother." Id. ¶ 40.

The Amended Complaint alleges that Sayre, Brock, and NDHHS "failed to contact, interview or otherwise investigate obvious and available collateral sources concerning AA and AF," such as "treating physicians, teachers, and day care personnel . . . ." Id. ¶ 43, Page ID 336. The Amended Complaint describes how these collateral sources would have supported Ayres's fitness as a parent. See id., Page ID 336-38.

On October 8, 2015, Brock informed Ayres that she would be placed on the "Child Abuse Registry," due to Ayres's neglect of AA in allowing her to "go 'off her meds.'" Id. ¶ 45, Page ID 338. On January 11, 2016, "the Agency² concluded that its investigation substantiated the placement of [Ayres] on the [Child Abuse Registry]." Id. ¶ 47, Page ID 338-39.

As a result of her placement on the Child Abuse Registry, Ayres was prohibited from fostering children and her children³ were removed from her home. She also lost her job and the opportunity for future employment in child and family services—her trained field. Id. ¶¶ 48-50, Page ID 339. At some point, the state of Nebraska removed Ayres's name from the Registry. Id. ¶ 51.

The Amended Complaint gives the following summary:

[N]one of [the] Nebraska state agencies or their employees completed a thorough and legitimate investigation pursuant to NDHHS guidelines before deciding to place [Ayres] on the Registry. State employees Sarah Brock, Talana Sayre, Diane Martig, Lana Sayres, and Brenda Chase conducted and approved an inadequate, perfunctory, and non-existent "investigation" despite the existence of NDHHS published guidance and requirements. They failed to consider Ms. Ayres' constitutional rights and their actions resulted in Ms. Ayres being placed on the Central Registry, the loss of Ms. Ayres' license to provide foster care, loss of her foster and adopted children, and loss of her job.

The State of Nebraska and its employees failed to conduct an adequate, let alone thorough, investigation. The investigation failed to meet guidelines in place by DHHS for intake processes and investigation. Most significantly, the State of Nebraska and its employees should have and were expected to contact and interview collateral sources who could provide meaningful and objective information. No such contact was made and Jill Ayres' life was devastated by being placed on the Central Registry. The actions directly flowing from the State of Nebraska's faulty investigation as conducted by DHHS employees were: (1) loss of Ms. Ayres' children; (2) loss of her job; (3) loss of her profession and livelihood; and (4) loss of her self-esteem and self-worth.

Id. ¶¶ 53-54, Page ID 340.

Ayres filed this action in the District Court of Douglas County, Nebraska, on August 3, 2017. Defendants removed the case to this Court on September 1, 2017, citing the Court's federal-question jurisdiction. Ayres filed her Amended Complaint on January 18, 2018. In the Amended Complaint, the first claim is captioned "FIRSTCLAIM ALL DEFENDANTS VIOLATED JILL AYRES' WELL-ESTABLISHED CONSTITUTIONAL RIGHTS." Id., Page ID 341. The Amended Complaint goes on to state that "the State of Nebraska, and its employees, acting in their official capacities, interfered with and deprived Jill Ayres' Fourteenth Amendment liberty interest in the companionship, care, and custody of her daughters." Id.

Subsequent headings are not captioned numerically, and whether they are intended as part of the "First Claim" or new claims is difficult to discern. The next heading states "Defendants Violated Jill's Constitutionally Guaranteed Rights to Substantive Due Process Because the 'Investigation' Was Not Based on A Reasonable Suspicion of Child Abuse." Id., Page ID 342. Under this heading are four subsections, respectively captioned, "Defendants Violated Jill's Constitutionally Guaranteed Liberty Interests Because Its [sic] Investigation Was Inadequate, Incomplete, and Incompetent;" "Defendants Violated Ms. Ayres' Constitutional Rights and Liberty Interests Based on Their Failure to Interview & Corroborate Witness Testimony;" "Defendants Violated Ms. Ayres' Constitutional Rights Prior to Placing Her on the Central Registry Based on the CPS 'Staggering' Rates of Error;" and "Defendants Violated Jill's Constitutional Rights by Placing Her on The Central Registry When She Exercised Her Constitutional Right to Determine AA's Medical Treatment." Id., Page ID 343-45. The final two section headings simply state "NDHHS Employees Are Liable Under 42 U.S.C. §1983 In Their Official Capacities" ...