Kruse v. State of Hawaii

• Decision Date: 11 July 1994
• Docket Number: Civ. No. 93-00675DAE.
• Citation: 857 F. Supp. 741
• Parties: Sue KRUSE and Lance Caspary, Plaintiffs, v. STATE OF HAWAI`I, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

857 F. Supp. 741

Sue KRUSE and Lance Caspary, Plaintiffs, v. STATE OF HAWAI`I, et al., Defendants.

Civ. No. 93-00675DAE.

United States District Court, D. Hawai`i.

July 11, 1994.

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Carl M. Varady, American Civ. Liberties Union, Honolulu, HI, Marianita Lopez, American Civ. Liberties Union of Hawai`i Foundation Haleiwa, Haleiwa, HI, for plaintiffs.

Steven S. Michaels, Robert A. Marks, Thomas D. Farrell, Office of the Atty. Gen., State of Hawai`i, Honolulu, HI, for defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR ABSTENTION, GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND FOR SUMMARY JUDGMENT, AND REMANDING REMAINING STATE CLAIMS TO STATE COURT

DAVID ALAN EZRA, District Judge.

The court heard the parties' motions on July 5, 1994. Carl M. Varady, Esq., appeared on behalf of plaintiffs; Steven Michaels, Esq., appeared on behalf of defendants. After reviewing the motions, the supporting and opposing memoranda, and the arguments of counsel, the court DENIES the plaintiffs' motion for abstention, GRANTS the defendants' motion for summary judgment as to qualified immunity, GRANTS the defendants' motion for judgment on the pleadings as to Eleventh Amendment immunity and the supervisory liability claims, and REMANDS the remaining state law claims to state court.

BACKGROUND

This case concerns the intent and actions of employees of the Department of Human Services, State of Hawaii, "to safeguard, treat, and provide permanent planning for children who have been harmed or threatened with harm," Hawaii Revised Statutes ("HRS") § 587-1 (1985), and to protect "the health, welfare, and safety of the children cared for" by state-licensed day-care facilities. HRS § 346-164 (1985). Chapter 587 defines "child" as a "person under eighteen years of age."

In the morning of July 6, 1991, Sue Kruse and Lance Caspary drove to Kona Hospital on the Big Island of Hawaii, anticipating the birth of their first child. On the way to the hospital, while in labor, Kruse smoked a marijuana cigarette to relax. Kruse delivered the baby, later named Kanoa, early the next morning. The hospital staff reported that Kanoa was jittery and easily arousable, and that, on July 8, Kruse's breath smelled of marijuana.¹ Later that day, a urine test performed on Kanoa revealed the presence of canabinoids and alcohol.²

Pursuant to HRS §§ 350-1.1 and 350-1.2, a hospital social worker immediately reported these test results to Child Protective Services ("CPS"), a division of the State of Hawaii's Department of Human Services ("DHS").³ Shari Crouse, a CPS caseworker, interviewed Kruse that afternoon; Kruse admitted to occasionally using marijuana and to smoking it once a week during her pregnancy,⁴ but denied smoking marijuana in the hospital. She admitted to being a fairly heavy smoker—one pack a day normally, 8-10 cigarettes while pregnant.

Once Kruse and Kanoa were discharged, Crisis/Investigative Social Worker Luana Ogi ("defendant Ogi") visited Kruse's home.⁵ During defendant Ogi's July 10 visit, Kruse admitted that she had smoked pot on the way to the hospital to relax her.⁶ Kruse and Caspary then agreed that CPS could openly communicate with the baby's pediatrician, and agreed to participate in a family support services program ("MIST"). However, Kruse would not agree to submit to drug testing. After defendant Ogi left the house, Caspary called her to complain about the visit. He asserted that, while Kruse did smoke marijuana while pregnant, marijuana had not been proven to be damaging and caused significantly less harm than cigarettes and alcohol.

At the time Kruse gave birth, she was employed by Mauna Lani School, a child care facility subject to the jurisdiction of DHS. HRS §§ 346-151 et seq. (1985). Hawaii Administrative Rules ("HAR") instruct that an employee of a child care facility may be terminated⁷ if that employee's (1) employment history indicates violence, alcohol or drug abuse, the circumstances of which "indicate that the applicant or employee may pose a danger to children;"⁸ or (2) background information shows that "the individual has been identified as and substantiated to be the perpetrator of child abuse or neglect."⁹ On or before July 19, 1991, Kruse affirmatively informed her boss, Angela Thomas, that she had used marijuana and was currently involved in a CPS investigation.¹⁰

On July 19, defendant Ogi shared the results of her investigation of Kruse with DHS Social Worker Deborah Arnett ("defendant Arnett"), the licensing social worker responsible for Mauna Lani preschool. According to defendants, such sharing of information is both common and authorized by the abovecited rules. Defendant Arnett told defendant Ogi that she would not recommend Thomas suspend or terminate Kruse if Kruse would stop using marijuana, cooperate with the drug screening, and if the results of her tests would eventually be negative. A week later, on July 25, 1991, Kruse told Ogi that she felt she had been put between a rock and a hard place by defendants Ogi and Arnett, and felt compelled to submit to a drug test. She insisted that they wait for thirty days, though, because "she did not want to give them anything to work with," and believed that her test would be clean in a month. As of August 6, 1991, Kruse still had not taken a drug test.

On August 7, 1991, a multidisciplinary team ("Team") comprised of a pediatrician, a psychologist, a social worker, a nurse, the state day-care licensing officer, the West Hawaii MIST coordinator, a member of the CPS Board of Directors, and the team coordinator met to discuss further action on behalf of baby Kanoa.¹¹ The Team focused on the following questions:

(1) Is Kanoa thriving? Are there any indications of drug effect on the baby?

(2) Is the mother's care of the child, and response to CPS, adequate and appropriate?

(3) How can CPS get the parents to focus their concern on the child, rather than on their rights?

(4) What, legally, can be done in this case?

After considering the evidence presented by the Team members, the Team made the following findings: Kanoa was a drug-exposed infant at birth with regard to marijuana and nicotine. Kruse's behavior indicated that she is probably addicted to both substances, and she expresses denial in the extent of substance usage for fear of adverse consequences. The parents resist CPS monitoring, but will allow CPS and MIST into the home. At present, Kanoa is more at risk from Kruse's cigarette use than from her marijuana use; if Kruse's use of marijuana does not interfere with her ability to care for Kanoa, other adverse consequences are unlikely.¹² The Team concluded that Kanoa was in a high risk situation because of (1) Kruse's potential addictions, (2) the unmarried status of Kruse and Caspary, (3) Kruse's unstable job situation, and (4) Kanoa's position as the first child for both parents.

Based on the above findings, the Team made the following recommendations:

(1) Involve Susan in a 12-Step or treatment program, i.e., Narcotics Anonymous, so she may prove she is no longer exposing her baby to drugs while breast-feeding.

(2) Observe mother's ability to care adequately for the child. (Is she frequently nonsober?)

(3) Monitor child's well-being through Dr. Garcia.

(4) Discuss the case issues very openly with these parents; clarifying all issues and sensitizing them to their problems. Be prepared to offer ways they might address these.

(5) Mother and father should receive counseling regarding possible drug effects of marijuana, nicotine and cigarette smoke, upon a developing infant.

(6) Concentrate on helping parents focus their concern on the baby more than on their own needs.

(7) Random drug screens for Susan Kruse.

Defendant Ogi shared the results and recommendations of the Team meeting with Kruse, who was anxious to hear about them.¹³ Kruse was uncomfortable only with the seventh recommendation (her drug testing). In the weeks following the Team meeting, defendant Ogi continued to observe Kruse and the baby. On August 9, 1991, the MIST program coordinator reported that Kruse had said she had last smoked marijuana on the way to the hospital, but that "anything else is my little secret." As of August 23, 1991, Kruse still refused to take a drug test.

In the meantime, Angela Thomas told defendant Ogi that she was seriously thinking about terminating Kruse, because she was concerned about employing a care provider who uses marijuana and who resists services. On August 29, 1991, CPS learned that Thomas, on behalf of Mauna Lani, had orally terminated Kruse. Mauna Lani's termination letter, dated September 4, informed Kruse that she was being terminated because "CPS and DHS consider" her transmission of marijuana to Kanoa in utero "abuse and neglect of the child." Defendants' Exhibit 5. The letter referred to the HAR subsections cited above, and concluded that, because of her drug use and abuse/neglect of Kanoa, Kruse did not fit within the "good moral character" framework established by the Hawaii child care worker regulations. Angela Thomas told CPS that the letter had been carefully scrutinized by lawyers for the day-care center and by the center's licensing officer before it had been sent.

On September 6, 1991, Kruse and Caspary each called CPS to complain. They both told CPS they felt the CPS workers had unfairly caused Kruse to be fired. Kruse told defendant Ogi that she had actually taken a drug test, but had used a false name. Ogi told her that she had to re-take the test, using her own name and social security number, in order for it to be binding. Kruse stated that she was ready to cooperate with the drug testing, because she wanted to close the CPS case. When CPS workers inquired with defendant Arnett to see if Kruse could be rehired, Arnett agreed: if Kruse would cooperate and submit to random drug tests, she could be re-hired.

On September 12, 1991, Kruse called CPS to assert that she...