Belinda K. v. County of Alameda
| Decision Date | 08 July 2011 |
| Docket Number | Case No.: 10-CV-05797-LHK |
| Parties | BELINDA K., Plaintiff, v. COUNTY OF ALAMEDA et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
On December 21, 2010, Belinda K. (Plaintiff), proceeding pro se, filed a complaint alleging 20 causes of action against 23 named defendants on behalf of herself and her minor son, J.H. See Compl. (Dkt. No. 1). Plaintiff's Complaint alleges that her minor son was taken from her custody on the basis of falsified, misleading and incomplete information [REDACTED]. Based on these allegations, Plaintiff asserts constitutional violations and violations of the Indian Child Welfare Act (ICWA, 25 U.S.C. §§ 1901 et seq.) via 42 U.S.C. § 1983, as well as a number of claims arising under state law such as malicious prosecution, intentional infliction of emotional distress, invasion of privacy, and attorney malpractice. At the same time Plaintiff filed the Complaint in this case, she filed an identical complaint in the Superior Court for the County of Alameda. The secondcomplaint was removed to this Court by some of the defendants, and subsequently related to and consolidated with the above-captioned case. See Dkt. No. 86.
Seven different groups of defendants (collectively, "Defendants") filed motions to dismiss the complaint. The Defendants are grouped as follows. "County Defendants" include Alameda County; social workers Mary Chew, Linda Fuchs, Tracy Fernandez, and Bruce Jackson; former Alameda County Counsel Richard E. Winnie (now deceased); and Alameda County Department of Social Services Director Yolanda Baldovinos. County Defendants' motion to dismiss was joined by the "City Defendants," including the City of San Leandro and City of San Leandro Police Department employees Officer Wong, Detective Luis Torres, Sergeant Decosta, and Kamilah Jackson. A separate motion to dismiss was filed by "Plaintiff's Counsel Defendants," including Patrick O'Rourke, Cheryl Smith, and Dennis Reid (three of Plaintiff's appointed attorneys). A third motion to dismiss was filed by "J.H.'s Counsel Defendants," including the Alameda County Public Defender's Office and attorney Shanna Noel Connor (former appointed counsel for J.H. in the state court dependency proceedings). A fourth motion to dismiss was filed by defendant Geri Isaacson ("Isaacson"), J.H.'s elementary school principal. A fifth motion to dismiss was filed by Lezley Crowell ("Crowell"), who also served as appointed counsel for Plaintiff. A sixth motion to dismiss was filed by the Alameda County Bar Association. A seventh motion to dismiss was filed by EMQ Families First, Inc. ("EMQ"). An eighth motion to dismiss was filed by "EBCLO Defendants," the East Bay Children's Law Offices and Jonna Thomas (currently appointed counsel for J.H. in the ongoing dependency proceedings in state court).
Plaintiff filed one opposition to all of the motions, except for the EBCLO Defendants' motion, which was not timely served on Plaintiff. Dkt. No. 126 (Opp'n). In response, all Defendants other than EBCLO filed reply briefs. Plaintiff responded with a sur-reply. Dkt. No. 133. The City Defendants moved to strike Plaintiff's sur-reply. Dkt. No. 136. Although Plaintiff did not move for leave to file the sur-reply, and it was therefore improperly filed, the Court will not strike it and has reviewed it because of Plaintiff's pro se status. In the future, however, Plaintiff must follow the Civil Local Rules and move for leave to file any sur-reply (unless otherwisepermissible under Civil Local Rule 7-3(d)). Accordingly, the City Defendants' motion to strike is DENIED.
For the reasons set forth below, the Court GRANTS Defendants' Motions to Dismiss with leave to amend as specified.
The Court summarizes the relevant allegations from Plaintiff's Complaint as follows.2 Plaintiff is the mother of J.H., a minor. J.H. is an Indian child as defined by the Indian Child Welfare Act (ICWA), and both J.H. and Plaintiff are registered members of the Cow Creek Band of the Umpqua Tribe of Native Americans. On December 19, 2006, when J.H. was seven years old, [REDACTED]. Based on this information, employees of the San Leandro Police Department including Officers Wong, Jackson and DeCosta removed J.H. from his school and brought him to an Alameda County Department of Social Services Assessment Center. Compl. ¶¶ 12-13. The police removed J.H. from school and placed him in foster care without a warrant and based only on Isaacson's account of J.H.'s statements about abuse. Compl. ¶¶ 12, 27. After removing him, the police questioned J.H. without the presence or consent of his mother or other guardian. Compl. ¶ 18. Plaintiff alleges that J.H. later made statements inconsistent with Isaacson's account at the "CALICO" (Child Abuse Listening, Interviewing and Coordination Center) Interview. Plaintiff does not allege when this interview took place. Compl. ¶ 28.
On December 21, 2006, the Alameda County Health and Human Services Agency ("Agency") filed a petition in Alameda County Superior Court ("Superior Court") alleging that J.H. was a child described by section 300(c) of the California Welfare and Institutions Code. Compl. ¶ 20. The petition stated that J.H. was suffering or at substantial risk of suffering serious emotional damage [REDACTED]. Compl. ¶ 20. Plaintiff alleges that the petition did not contain any specifics regarding her conduct. Id. On December 22, 2006, the Superior Court held a detention hearing, and Crowell was appointed counsel for Plaintiff. Compl. ¶ 31.
On January 2, 2007 the Superior Court held a jurisdictional hearing on the petition. The Agency filed and served a Report the same day. Compl. ¶ 34. Plaintiff alleges that the January 2, 2007 Agency Report contained misrepresentations, including that the Board of Indian Affairs had been notified but that Plaintiff's tribe had not been contacted, and that there was an ongoing police investigation awaiting the results of an exam of J.H. before bringing the case to the District Attorney.3 Compl. ¶ 32. Plaintiff claims that the County Counsel representative at the hearing made an admission that the Court lacked jurisdiction over the petition, but that her attorney did not follow up or ask questions about this. Compl. ¶ 37. At the hearing, Plaintiff signed a waiver wherein she pleaded no contest to the allegations in the petition. Compl. ¶ 38.
Plaintiff claims she did not meet with Crowell until just before the hearing began despite her efforts to meet beforehand. Compl. ¶ 31. Plaintiff further claims that she signed the waiver form during a recess in the hearing while being pressured by Crowell to sign, and that Crowell did not explain the consequences of signing the form or that "if the court were to find the petition to be true, that [Plaintiff] would have difficulty getting her child back unless she admitted [REDACTED]." Compl. ¶¶ 35, 98.h. Plaintiff claims that her waiver "did not comply with the procedural requirements for a 'knowing and intelligent' waiver because the Superior Court did not comply with the California Rules of Court in accepting it." Compl. ¶ 39. At the January 2, 2007 hearing, the Superior Court found that J.H. was a dependent child as described by section 300, and that he should remain in foster care. After the hearing, Plaintiff alleges that she was "intercepted in the hallway" by defendant Fuchs, an Agency social worker, who presented her with a release form for a [REDACTED] exam for J.H., which Plaintiff signed. Compl. ¶ 40. Plaintiff alleges that she did not possess the authority to sign the form in light of the outcome of the hearing, and that in any event it should have been presented to attorney Crowell rather than directly to Plaintiff. Id.
On January 16, 2007, the Superior Court held a hearing and noted that notice had not been provided to Plaintiff's tribe pursuant to ICWA. Compl. ¶ 41. Crowell stated that Plaintiff "is contesting this whole recommendation" and that she "wants her child back in her home." Compl.¶43. Accordingly, the matter was re-set for a contested dispositional hearing on April 5, 2007. Compl. ¶ 45. Also on January 16, 2007, J.H. was examined by a doctor at "Children's Hospital." Compl. ¶ 44. Plaintiff alleges that this exam was an illegal search in violation of the Fourth Amendment. Plaintiff alleges that Fuchs submitted false information to the doctor in advance of the exam, stating that J.H. disclosed during the CALICO interview that [REDACTED], but that the CALICO tapes prove that J.H. never said this. Compl. ¶ 52. Plaintiff claims that the exam revealed no signs of [REDACTED] abuse. Id.
On April 5, 2007, the Superior Court held a dispositional hearing. Plaintiff claims that there was still no proof of notice to her tribe and that the Court granted "a 30 day grace [period]" for County Counsel to supply this notice. Compl. ¶ 45. However, Plaintiff also alleges that a Tribal Representative from her tribe, Rhonda Malone, appeared at the hearing. Compl. ¶ 46. Plaintiff alleges that Ms. Malone testified that she did not know what was going on in the case, and only agreed to recommend that J.H. should be removed from Plaintiff's custody because she was asked to assume that the facts in the Report were true. Compl. ¶ 50. At the dispositional hearing, the Superior Court concluded that J.H. should remain a dependent child in the custody of the state. Compl. ¶ 53. J.H. is still living in foster care. His placement has been reviewed by the Superior Court approximately every six months since his initial placement. See Compl. ¶¶ 54-83.
Throughout the Superior Court proceedings, Plaintiff has been represented by a series of court-appointed counsel, and J.H. has been represented by separate appointed counsel. Id. Plaintiff alleges that throughout the Superior Court proceedings, including the six month status reviews, all appointed counsel have failed to adequately...
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