District Columbia v. Cnty. of San Diego, Case No.: 18-cv-13-WQH-MSB

• Decision Date: 06 April 2020
• Docket Number: Case No.: 18-cv-13-WQH-MSB
• Parties: D.C., J.C., and T.C., BY AND THROUGH their Guardian, Melanie CABELKA; and Melanie Cabelka, individually, Plaintiffs, v. COUNTY OF SAN DIEGO; Sarah Wilson ; Carlos Omeda; Fatimah Abdullah; Marilyn Sproat; and Does 1-100, Defendants.
• Court: U.S. District Court — Southern District of California

445 F.Supp.3d 869

D.C., J.C., and T.C., BY AND THROUGH their Guardian, Melanie CABELKA; and Melanie Cabelka, individually, Plaintiffs,

v.COUNTY OF SAN DIEGO; Sarah Wilson ; Carlos Omeda; Fatimah Abdullah; Marilyn Sproat; and Does 1-100, Defendants.

Case No.: 18-cv-13-WQH-MSB

United States District Court, S.D. California.

Signed April 6, 2020

Adrian Michael Paris, Shawn A. McMillan, Stephen Darden Daner, The Law Office of Shawn A. McMillan, APC, San Diego, CA, Amber Michi Tham, Ayman Raouf Mourad, Lanzone Morgan, LLP, Long Beach, CA, for Plaintiffs.

Erica R. Cortez, Kate Dwyre Jones, County of San Diego Office of County Counsel, San Diego, CA, for Defendants County of San Diego, County of San Diego Health and Human Services, Sarah Wilson, Carlos Omeda, Fatimah Abdullah.

Malcolm D. Schick, Sean Edward Smith, G & P Schick, a Professional Corporation, San Diego, CA, for Defendant Laurel Bredthauer.

Kate Dwyre Jones, County of San Diego Office of County Counsel, San Diego, CA, for Defendant Marilyn Sproat.

ORDER

HAYES, Judge:

The matters before the Court are the Motions to Dismiss Plaintiffs' Third Amended Complaint filed by Defendants Sarah Wilson, Carlos Olmeda¹ , Fatimah Abdullah, and Marilyn Sproat (ECF No. 103) and the County of San Diego (ECF No. 104).

I. PROCEDURAL BACKGROUND

On October 3, 2019, Plaintiffs Melanie Cabelka and her minor children, T.C., D.C., and J.C., filed a Third Amended Complaint ("TAC") against Defendants Sarah Wilson, Carlos Olmeda, Fatima Abdullah, Marilyn Sproat (collectively, the "Social Worker Defendants"), the County of San Diego (the "County"), and Does 1 through 100.² (ECF No. 101). Plaintiffs allege claims against Defendants under 42 U.S.C. § 1983, and T.C., D.C., and J.C. (collectively, "Minor Plaintiffs") allege claims against Defendants for negligence, negligent and/or intentional misrepresentation, and intentional infliction of emotional distress. Plaintiffs seek general damages, special damages, punitive damages, interest, attorneys' fees, and costs.

On October 17, 2019, Defendants filed Motions to Dismiss the TAC for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF Nos. 103, 104). On November 11, 2019, Plaintiffs filed Oppositions to Defendants' Motions to Dismiss. (ECF Nos. 105, 106). Each Opposition is accompanied by a Request for Judicial Notice.³ (ECF Nos. 105-1, 106-1). On November 18, 2019, Defendants filed Replies in support of their Motions to Dismiss (ECF Nos. 107, 108) and Oppositions to Plaintiffs' Requests for Judicial Notice. (ECF Nos. 107-1, 108-1).

II. FACTUAL ALLEGATIONS

Plaintiff Melanie Cabelka adopted Minor Plaintiffs T.C., D.C., and J.C. after their successful foster or adoptive placements in Cabelka's home. T.C. was born in 2003, D.C. was born in 2004, and J.C. was born in 2009.

In March 2015, Defendant Marilyn Sproat, a County placement worker, requested to place foster children siblings D.G. and M.C. with Cabelka. D.G. and M.C. had been living at a temporary shelter for a prolonged period. Cabelka asked Defendant Sproat why D.G. and M.C. were living at the shelter, how many placements D.G. and M.C. had been in, and why the prior placements failed. Sproat told Cabelka that the children had been in two previous placements. Sproat told Cabelka that that "the prior adoptive placements had not ‘failed,’ " and the children were at the shelter through "no fault of their own." (ECF No. 101 ¶¶ 30, 33). Sproat told Cabelka that "it[']s an issue with their foster parent. Don't worry, the kids have no behavioral issues – they are very polite, very well mannered, and very helpful." (Id. ¶ 30). Sproat told Cabelka that D.G. and M.C. "have great behaviors. They are really, really happy good kids." (Id. ). Sproat told Cabelka that D.G. "had no problems other than D.G.'s medical problems, i.e., spina bifida

, which was well in hand." (Id. ¶ 33). Before committing to D.G. and M.C.'s placement, Cabelka contacted Defendant Fatimah Abdullah, the supervisor of D.G.'s social worker. Defendant Abdulla reiterated that D.G. and M.C.'s prior placements had not failed, that D.G. was "a great kid," and that D.G. had no issues other than spina bifida. (Id. ¶ 38).

Sproat and Abdullah's representations were false. The County and Sproat considered D.G. "to be a difficult child to place in part because of his medical issues and in part because of his behavioral and psychological problems which included violent outbursts and sexualized behaviors." (Id. ¶ 31). The County, Sproat, and Abdullah knew, or should have known, that both of D.G.'s previous foster parents and D.G.'s school filed reports informing the County and County social workers that "D.G. had been repeatedly caught smearing poop on the walls; had expressed suicidal thoughts; [and] had, on multiple occasions, destroyed property in violent physical outbursts...." (Id. ¶ 35). The County, Sproat, and Abdullah knew, or should have known, that "one of the reasons D.G. had been removed from his immediately prior adoptive placement with a woman named Tanya, was because he had been sexually molesting another male child in Tanya's care." (Id. ¶ 36). In addition, there were indications in D.G.'s CWS/CMS records that D.G. had been the victim of sexual abuse, and both D.G. and M.C. "had witnessed the rape of their older sister, Crystal." (Id. ¶¶ 36, 41). Sproat and Abdullah failed to disclose, and "actively suppressed," this information "out of concern that if they had disclosed all of the relevant information to [Cabelka], she would refuse to allow D.G. into her home." (Id. ¶ 31).

Cabelka accepted D.G. and M.C. as adoptive placements. From March 2015 through January 2017, Cabelka experienced behavioral issues with D.G. D.G. had poor hygiene, smeared feces on the walls, cut open and destroyed two beds, and downloaded and viewed "homosexual child pornography." (Id. ¶ 58). D.G.'s school informed Cabelka that D.G. had suicidal thoughts and that his fecal smearing and hygiene issues were "an ongoing problem." (Id. ¶ 46). After each incident, Cabelka contacted Defendant Abdullah or Defendant Carlos Olmeda, D.G.'s social worker, to report the incidents and further inquire about D.G.'s history. On many occasions, Cabelka never received a response. When Cabelka did receive a response, she was told that D.G. "can't smell himself" (id. ¶ 44) and that "there were no previous incidents of this nature and [ ] D.G. had no known psychiatric impairments or behavioral problems." (Id. ¶ 45). Defendant Olmeda reiterated the "false assurances that there were no known behavioral or mental health issues for D.G." (Id. ¶ 50). When Cabelka reported that D.G. downloaded and viewed child pornography, Olmeda assured Cabelka that "a report would be made and investigation would ensue." (Id. ¶ 58). The County never conducted an investigation.

Cabelka did not have the ability to obtain D.G.'s mental health information because she had not received medical cards, waivers, or records from the County. Cabelka attempted to discover information about D.G.'s history and behavioral problems from other sources. Cabelka contacted D.G.'s Court Appointed Special Advocate who confirmed that D.G. had a history of suicidal thoughts, hygiene issues, fecal smearing, and violent outbursts. The Court Appointed Special Advocate "disclosed to [Cabelka] that D.G. witnessed the rape of his older sister, and that D.G. had sexually acted out with a boy in his prior adoptive home – and was removed from that home as a result." (Id. ¶ 64).

In June 2016, the County informed Cabelka that an "experienced" social worker, Defendant Sarah Wilson, would be taking over D.G.'s case. (Id. ¶ 62). On June 20, 2016, Cabelka contacted Defendant Wilson "requesting assistance because [Cabelka] did not feel she had the ability to care for D.G. due to his increasing instances of sexual behaviors." (Id. ¶ 63). Wilson "refused to disclose any of the negative information available to her in the CWS/CMS records." (Id. ¶ 63). Wilson failed to provide assistance and told Cabelka that "if she had D.G. removed from her home, [Cabelka] would no[t] be permitted to adopt [M.C.] with whom [Cabelka] had become bonded." (Id. ¶ 63). Cabelka continued to report D.G.'s behaviors to Wilson, and the County failed to investigate Cabelka's reports. Cabelka told Wilson she "did not feel safe having D.G. in her home and she could not commit to adopting him due to his behaviors." (Id. ¶ 64).

Despite DEFENDANTS' knowledge of D.G's propensities for sexual and physical violence and outbursts, and [Cabelka's] persistent reporting and pleas for help, DEFENDANTS, and each of them, failed to take any action to remove this dangerous child, D.G., from [Cabelka's] home, or even to warn [Cabelka] of his known dangerous propensities.

(Id. ¶ 67).

On August 8, 2016, D.G. "violently sodomize[d] D.C." (Id. ¶ 68). Cabelka reported the assault to Defendant Wilson. Cabelka told Wilson, "I want D.G. out of here." (Id. ¶ 70). Wilson told Cabelka that she could not just "dump" D.G. without providing notice to the agency, that Cabelka should not go to the police, and that the rape allegations would be investigated. (Id. ). Wilson told Cabelka that her "adoption of M.C. would be scuttled if [Cabelka] did not allow D.G. to remain in her home while the rape allegations were investigated and sorted out." (Id. ). Cabelka requested that D.G. "be removed from her home as soon as possible." (Id. ). The County failed to investigate the assault or remove D.G.

On September 12, 2016, Cabelka contacted Wilson "begging for respite care for D.G. due to her concerns for the safety and well being of her and her other children.... [Cabelka] complained that she needed help now...." (Id. ¶ 75). Wilson did not remove D.G. "On October 20, 2016, D.G. sexually assaulted T.C." (Id. ¶ 76). Cabelka reported the assault, and Defendants "threaten[ed] and coerc[ed] [Cabelka] into keeping D.G. in the Cabelka home" and...