Kolley v. Adult Protective Serv.

• Decision Date: 31 March 2011
• Docket Number: Civil Case No. 10–CV–11916.
• Citation: 786 F.Supp.2d 1277
• Parties: Suzanne KOLLEY, et al., Plaintiffs,v.ADULT PROTECTIVE SERVICES, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

786 F.Supp.2d 1277

Suzanne KOLLEY, et al., Plaintiffs,

v.ADULT PROTECTIVE SERVICES, et al., Defendants.

Civil Case No. 10–CV–11916.

United States District Court, E.D. Michigan, Southern Division.

March 31, 2011.

Nabih H. Ayad, Nabih H. Ayad Assoc., Canton, MI, for Plaintiffs.John G. Fedynsky, State of Michigan Attorney General's Office, Margaret A. Nelson, Michigan Department of Attorney General, Lansing, MI, Keith J. Lerminiaux, Oakland County Corporation Counsel, Pontiac, MI, Andrea M. Johnson, Mark J. Zausmer, Heidi D. Hudson, Zausmer, Kaufman, Robert G. Chaklos, Jr., Secrest, Wardle, Farmington Hills, MI, Gordon S. Gold, Seyburn, Kahn, Southfield, MI, Richard J. Gianino, Plunkett Cooney, Detroit, MI, or Defendants.

OPINION AND ORDER REGARDING DEFENDANTS' DISPOSITIVE MOTIONS

MARK A. GOLDSMITH, District Judge.I. Introduction

This is a constitutional civil rights and state tort case related to the actions allegedly taken by Defendants in removing Plaintiff Jena Kolley from her home and placing her in Hazel House group home. Before the Court are six separate motions filed by Defendants requesting dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), and/or judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), and/or summary judgment pursuant to Federal Rule of Civil Procedure 56.

II. Factual and Procedural Background

Plaintiffs are:

• Jena Kolley;

• Suzanne and Joseph Kolley (the divorced biological parents of plaintiff Jena Kolley);

• George Brown (Suzanne Kolley's husband and Jena Kolley's step-father); and

• William and Joseph Kolley, Jr. (Jena Kolley's brothers).

Defendants are:

• the Michigan Department of Human Services (MDHS), Michigan Adult Protective Services (APS), and APS agent Marcie Fincher;

• the Macomb–Oakland Regional Center (MORC) ¹ and MORC agents Edward Kiefer, Lori Mathes, Susan Thomas, Lea Antella, and Susan Gipperich;

• Oakland County Sheriff's Detective John Neph;

• Hazel House group home,² Hazel House manager Priscilla Murrell, and Hazel House employee Pat Holmes;

• Shirley Saltzman, Jena Kolley's guardian ad litem; and

• Tricia Schuster, a forensic evaluator with Care House.³

The following account is taken from the allegations of the complaint.

Jena Kolley is a developmentally disabled nineteen-year-old woman who has a rare genetic disorder, Oral Facial Digital Syndrome, characterized by physical defects of the mouth, tongue, teeth, jaw, face, head, eyes, nose, fingers, and toes. D.E. 1 at ¶ 16 (complaint). Due to her condition, Jena Kolley's communication skills and social skills are significantly impaired. The complaint alleges that Jena Kolley's communication skills are that of a child between the ages of five and seven; her social skills are that of a child between four and eight. Id. at ¶ 19. By way of illustration, “when given a verbal prompt, Jena Kolley will use a 2 word utterance 80% of the time.” Id. Jena Kolley does not communicate well with people with whom she is uncomfortable, is often misunderstood, and lacks the ability to correct the listener when she is misunderstood. The complaint alleges that, when faced with a question, Jena Kolley often simply answers “yes.” Id.

Jena Kolley attended Rochester Public Schools until October 2008, when she began attending “Wings,” a school for mentally disabled children. On November 12, 2008, Oakland County Sheriff's Department Detective John Neph informed Suzanne Kolley that Jena Kolley's teacher at Wings reported that Jena Kolley told her on October 29, 2008 and November 6, 2008 that “mama hit me.” Id. at ¶ 23. According to the complaint, when Suzanne Kolley arrived at school with Jena Kolley on November 14, 2008,

Plaintiff Suzanne Kolley was approached by a school police liaison, [Jena Kolley's teacher] Stephanie Nelson, ... Defendant Neph, [APS employee] Marcie Fincher, and an unknown APS employee who informed Plaintiff Suzanne Kolley that Plaintiff Jena Kolley would be questioned for a few hours [,] after which Jena could return home with her mother. This upset Plaintiff Jena Kolley, who began to cry and cling to her mother. At that point Plaintiff Suzanne Kolley showed the school social worker that Plaintiff Jena Kolley did not have any bruises on her back, yet these individuals persisted in taking the hysterically upset girl away from her mother to be questioned.

Present at this interview were Defendant Marcie Fincher, Assistant Oakland County Prosecutor Derek Meinecke, Defendant Edward [Kiefer], Defendant Lori Mathes, Defendant Susan Thomas, Defendant Neph, and Defendant [Tricia] Schuster.

Defendants subjected Plaintiff Jena Kolley to a variety of invasive and leading questions, despite the fact that Plaintiff Jena Kolley is not competent to make such statements.⁴

As a result of these tactics, Defendants were able to take advantage of Plaintiff Jena Kolley's disability and convince her to make allegations against her mother, Plaintiff Suzanne Kolley.Id. at ¶¶ 24–27. Following the interview, Jena Kolley was permitted to return home with her mother. The complaint alleges that, based solely on the statements made by Jena Kolley at the interview, “Defendants” filed an ex parte petition to terminate Suzanne's guardianship over Jena Kolley. Id. at ¶ 29. Joseph Kolley, Jena Kolley's father, was allegedly not notified of the petition.

Later that same day, Detective Neph informed the Kolley family that Jena Kolley was going to be removed from the home. Within an hour, MORC agent Defendant Susan Gipperich appeared at Jena Kolley's home with two Oakland County sheriff's deputies and removed Jena Kolley. Suzanne Kolley informed Gipperich of Jena Kolley's strict dental and oral hygiene requirements. Id. at ¶ 32–33. From November 14 to November 18, the Kolley Family was allegedly not made aware of the location to which Jena Kolley had been taken. On November 18, 2008, they were notified that the Oakland County Probate Court had appointed a temporary guardian in place of Suzanne Kolley. Later, criminal charges were filed against Suzanne Kolley related to the abuse allegations by Defendants. Id. at ¶ 47.

On November 18, 2008, Jena Kolley was allegedly transported to St. John Providence Hospital in Southfield, Michigan, by Detective Neph and Hazel House's Pat Holmes and subjected to an “anal and vaginal rape test.” Id. at ¶ 35. The complaint alleges that the exam occurred “without any allegations whatsoever of rape,” and that Jena Kolley was not competent to consent to the exam and Jena Kolley's temporary guardian did not sign the form. According to the complaint, the hospital report showed no evidence of rape, abuse, or bruising. Id. at ¶ 35.

No one from the Kolley family was permitted to visit Jena Kolley at Hazel House from November 18, 2008 to December 26, 2008. During that time, Hazel House employees would cut short family members' phone calls to Jena Kolley because after the calls, Jena Kolley would cry for hours to see her family and go home. On December 23, 2008, Joseph Kolley was allegedly appointed by the Probate Court as a co-guardian, with rights of visitation. ⁵ Plaintiffs allege that, as Jena Kolley's biological father, Joseph Kolley had the right to be appointed full guardian. Id. at ¶¶ 36, 39.

On December 26, 2008, Joseph Kolley visited Jena Kolley at Hazel House. He was allegedly the first family member permitted to visit Jena Kolley since she had been removed from the family home on November 14, 2008. Joseph Kolley observed that Jena Kolley “had lost weight and appeared disheveled and dirty”; that Jena Kolley's finger and toe nails were long and untrimmed; that “Hazel House employees had allowed the hair to grow out on her face and legs”; and that her dental hygiene needs were not being met. Id. at ¶ 40. Joseph Kolley complained about his daughter's condition to Hazel House employees and repeated Jena Kolley's dental hygiene requirements.

On January 28, 2009, the probate court held a hearing related to Joseph Kolley's petition to receive full custody of Jena Kolley. According to the complaint, “[b]efore and at this hearing, [Hazel House] Defendant Pri[sc]illa Mu[r]rell, Defendant Marcie Fincher, [guardian ad litem] Defendant Saltzman, and the MORC Defendants conspired and subsequently offered false testimony that on the December 26, 2008 [Hazel House] visit ... Plaintiff Joseph Kolley made sexual connotations towards [Jena Kolley] and requested that Hazel House give [Jena Kolley] a ‘bikini wax’ or otherwise shave her pubic hair.” Id. at ¶ 43.

Also according to the complaint, after the hearing, William Kolley asked “how do you people sleep at night,” causing Murrell to tell Jena Kolley “something to the effect of, ‘if you don't stop crying you will never see your family again.’ ” Id. at ¶ 44. Plaintiffs allege that Joseph and William Kolley were denied access to Hazel House on January 28, 2009, which caused Jena Kolley to begin crying for them.

On January 29, 2009, the probate court granted an emergency motion to terminate the Kolley family's visitation rights. Plaintiffs allege that the motion was “based on the outlandish allegation that on January 28, [2009] William Kolley and Joseph Kolley threatened MORC and Hazel House employees at Oakland County Circuit Court and again at Hazel House.” Id. at ¶ 46. Plaintiffs allege that, after the termination of Joseph Kolley's rights, no one from the Kolley family was permitted to visit or call Jena Kolley.

On March 11, 2009, Plaintiffs filed suit in federal district court, raising the same claims they raise in the instant suit (along with a medical malpractice claim). On October 16, 2009, United States District Judge George Caram Steeh dismissed the case without prejudice on Younger abstention grounds, due to then-pending state court proceedings involving Jena Kolley in Oakland County Probate Court and against Suzanne Kolley in Oakland County Circuit Court. See Kolley v. Adult Protection Servs., No. 09–CV–10919, 2009 WL...