David v. Betts

• Decision Date: 31 March 2021
• Docket Number: Civ. No. 20-00002 JMS-WRP
• Parties: HANNAH DAVID, Individually and on behalf of her minor daughter B.D., Plaintiffs, v. CATHY BETTS, DIRECTOR OF THE DEPARTMENT OF HUMAN SERVICES, STATE OF HAWAII; ET AL., Defendants. AND RELATED CROSSCLAIMS AND COUNTERCLAIM.
• Court: U.S. District Court — District of Hawaii

HANNAH DAVID, Individually and onbehalf of her minor daughter B.D., Plaintiffs, v. CATHY BETTS, DIRECTOR OF THE DEPARTMENT OF HUMAN

SERVICES, STATE OF HAWAII; ET AL., Defendants.

AND RELATED CROSSCLAIMS AND COUNTERCLAIM.

Civ. No. 20-00002 JMS-WRP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

March 31, 2021

ORDER (1) DENYING DEFENDANT KAULUKUKUI'S MOTION TO DISMISS FIRST AMENDED COMPLAINT, ECF NO. 134; (2) GRANTING IN PART KAULUKUKUI'S MOTION TO DISMISS KEAHIOLALO'S AMENDED CROSSCLAIM, ECF NO. 136; AND (3) GRANTING IN PART KEAHIOLALO'S SUBSTANTIVE JOINDER, ECF NO. 160

I. INTRODUCTION

Co-Defendant/Cross-Defendant Gina Kaulukukui ("Kaulukukui")—a Kauai County police officer—has filed three motions in this procedurally-complex action brought by Plaintiffs Hannah David ("David"), individually and on behalf of David's minor child B.D. ("B.D.") (collectively, "Plaintiffs") against Kaulukukui and several other Co-Defendants. ECF Nos. 134, 136, and 158.

First, Kaulukukui moves to dismiss claims against her in Plaintiffs' First Amended Complaint ("FAC"), which asserts two counts against Kaulukukui and others: Count One is a civil rights claim under 42 U.S.C. § 1983, and Count Three is a claim under state law for negligence or negligent infliction of emotional distress ("NIED"). See ECF No. 119.¹

Second, Kaulukukui moves to dismiss claims against her in an Amended Crossclaim brought against her and others by Co-Defendant/Cross-Claimant William Keahiolalo ("Keahiolalo"). ECF No. 136. Keahiolalo's Amended Crossclaim alleges three counts: Count I is a civil rights claim under § 1983 for violation of Keahiolalo's rights, Count II is state law claim for negligence, and Count III is a claim for contribution and/or indemnity. See ECF No. 129-1.

Third, also only as to claims against her, Kaulukukui filed a Motion to Dismiss a Crossclaim for contribution and/or indemnity brought against her and others (including Keahiolalo) by Co-Defendant Shawn Lathrop ("Lathrop"). ECF No. 158. In turn, Keahiolalo filed a Substantive Joinder in that Motion, seeking to dismiss Lathrop's Crossclaim against him. ECF No. 160.

Based on the following, the Court (1) DENIES Kaulukukui's Motion to Dismiss the FAC, ECF No. 134; (2) GRANTS in PART Kaulukukui's Motion to Dismiss Keahiolalo's Amended Crossclaim against Kaulukukui, ECF No. 136; (3) TERMINATES as MOOT Kaulukukui's Motion to Dismiss Lathrop's Crossclaim against Kaulukukui, ECF No. 158; and (4) GRANTS in PART Keahiolalo's Substantive Joinder, ECF No. 160.²

II. BACKGROUND

A. Factual Background

This action arises out of a December 20, 2019 incident in which State Child Welfare Services ("CWS") employees, with the aid of police, took custody of then-eleven year old B.D. at her school and removed her from David's (B.D.'s mother) custody, placing her (at least temporarily) with Keahiolalo (B.D.'s naturalfather). See FAC ¶ 1, ECF No. 119 at PageID # 928.³ The CWS employees removed B.D. from David apparently based upon a December 4, 2019 Hawaii Family Court restraining and/or protective order issued on behalf of Keahiolalo and B.D. that restrained David from having contact with B.D. as well as with Keahiolalo and his other family members. Id. at PageID # 935; ECF No. 3-2. According to the FAC, the petition for the December 4, 2019 Hawaii Family Court order was drafted by Kauai County police officer Kaulukukui, who prepared the petition for filing after Keahiolalo met with her on December 2, 2019. ECF No. 119 at PageID # 934. Allegedly, that December 4, 2019 Family Court order "did not, directly or indirectly, authorize Keahiolalo to obtain or receive custody of B.D." Id. at PageID # 935.

There is much more to this case, which involves allegations by Plaintiffs against numerous Defendants, including several CWS workers and the Director of the State of Hawaii Department of Human Services, Keahiolalo, a lawyer for Keahiolalo, as well as Kaulukukui. But because the present Motions are brought only by Kaulukukui (with a substantive joinder on a small aspect by Keahiolalo), the background here is limited to the relevant allegations against Kaulukukui, with many of the salient details of those allegations set forth in the appropriate discussion sections that follow. The parties know the allegations (and the disputes about them)—this section only sets forth the basic context necessary to understand the court's rulings on the Motions to Dismiss.

The December 4, 2019 Hawaii Family Court Order was apparently triggered by David's arrest a few days earlier, on November 29, 2019. According to the FAC, David became upset with Keahiolalo after an incident between David, Keahiolalo and B.D. on November 28, 2019 at a shopping center on Kauai. ECF No. 119 at PageID ## 933-34. "On the following day, [David] took B.D. to Defendant Keahiolalo's workplace and demanded that he apologize to B.D., which he refused to do." Id. at PageID # 934. "In her state of extreme anger, [David] then proceeded to yell and swear at Defendant Keahiolalo, taunt and push him—allon videotape—until the police arrived and arrested [David] on misdemeanor charges of harassment and third[-]degree assault." Id.

Much of the case centers on the meaning and effect of a nearly eight-year old February 14, 2012 Stipulation and Order of the Hawaii Family Court (the "February 14, 2012 Stipulation and Order") between David and Keahiolalo regarding custody of B.D., among other matters. According to the FAC,

[David] and Defendant Keahiolalo agreed and the [Family] Court ordered that [David] have full legal and physical custody of B.D., that Keahiolalo have no rights to visitation with B.D., that Keahiolalo stay away from and have no contacts whatsoever with [David] and B.D.,⁴ that Keahiolalo provide child support and health insurance for B.D., and allowed [David] to remove B.D. from the jurisdiction at [David's] sole discretion.

Id. at PageID ## 932-33.⁵ And, as discussed to follow, although not alleged in the FAC, the February 14, 2012 Stipulation and Order includes a provision reading "[i]n the absence of a compelling emergency that affects [B.D.'s] health or safety,Mr. Keahiolalo stipulates and agrees not to file any motions in the Family Court of the State of Hawaii or another jurisdiction." ECF No. 134-3 at PageID # 1023; ECF No. 3-3 at PageID # 35.

The FAC alleges that "Keahiolalo knowingly and intentionally omitted mention or reference to and failed to advise the [Family] Court of the Stipulation and Order dated February 14, 2012, that deprived him of all legal and custodial rights to B.D." ECF No. 119 at PageID # 935. "[David] is informed and believes that had the presiding judge in the Family Court been informed of the [February 14, 2012 Stipulation and Order], Defendant Keahiolalo's application for a temporary restraining order would not have been granted as to B.D." Id. Indeed, the FAC further alleges that, on December 31, 2019, a Family Court judge (apparently after being told of the February 14, 2012 Stipulation and Order) dismissed the portion of the petition pertaining to B.D. "due to Defendant Keahiolalo's 'lack of authority. . . to file on behalf of [B.D.,]'" id. at PageID # 940, leaving it intact as to protection for Keahiolalo and his family members. "[S]everal days" after that December 31, 2019 Family Court dismissal "B.D. was removed from the home of Defendant Keahiolalo and placed in a foster home on Kauai without any contacts or communications between [David] and her daughter." Id. at PageID # 942.

As discussed later, it is unclear whether Kaulukukui knew about the February 14, 2012 Stipulation and Order when she prepared and assisted Keahiolalo with the Family Court petition. But the FAC makes several allegations against various State of Hawaii CWS employees, indicating that at least those officials became aware of the Stipulation and Order before B.D. was removed from David's custody on December 20, 2019, or knew soon thereafter. See id. at PageID ## 936-40. And the FAC alleges that Kaulukukui "acted in concert with [CWS employees], among others, to file and serve the petition in the family court, to provide Defendant Keahiolalo with advice enabling him to . . . circumvent the existing [February 14, 2012] Stipulation and Order . . . and to orchestrate and carry out the seizure of B.D. and placement with Defendant Keahiolalo without any authority to do so." Id. at PageID ## 935-36.

It further alleges that David sought to report to Kauai police that Keahiolalo was "an allegedly abusive, non-custodial parent," id. at PageID # 939, but several CWS employees, along with Kaulukukui, coordinated efforts to prevent David's complaints from being investigated "to perpetuate what they knew to be the unlawful placement of B.D. in the custody of Defendant Keahiolalo." Id. According to the FAC, "[f]rom December 2, 2019 up through December 31, 2019, . . . Defendants worked together at every step with Defendant Keahiolalo to assistwith and prepare documents that deliberately misled the Family Court, to conspire to orchestrate the 'grab and go' abduction of B.D., and to maintain the appearance that the actions taken were appropriate and lawful." Id. at PageID # 943.

On or about January 6, 2020, the Hawaii Department of Human Services filed a petition for temporary custody of B.D. Id. at PageID # 942. B.D. was returned to David's custody following evidentiary hearings on that petition conducted in the Hawaii Family Court on January 8 and 10, 2020. Id. at PageID # 943.

B. Procedural History

Plaintiffs initiated this action on January 2, 2020 by filing a Complaint and Motion for TRO, seeking return of B.D. to David's custody. ECF Nos. 1, 3. After that Motion for TRO was withdrawn, ECF No. 19, and after unrelated litigation regarding the initial Complaint, Plaintiffs eventually filed the FAC on September 22, 2020. ECF No. 119. The FAC names as Defendants: (1) Pankaj Bhanot (the then-State Director of the Department of Human Services, in his official...