Roe v. Kansas Dept. of SRS, 89,462

• Court: Kansas Court of Appeals
• Writing for the Court: BEIER, J.
• Citation: Roe v. Kansas Dept. of SRS, 32 Kan. App. 2d 158, 80 P.3d 1162 (Kan. App. 2003)
• Decision Date: 19 December 2003
• Docket Number: No. 89,462,89,462
• Parties: ROBERT BOOTH ROE, a Minor Child, By and Through his Adoptive Parents, Richard Roe and Janet Roe, and Jennifer Brunetti, Conservator, Appellants, v. DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES FOR THE STATE OF KANSAS, THE STATE OF KANSAS, WAYNE SRAMEK, HERBERT HICKMAN, AND MARY KEADY, Appellees.

32 Kan.App.2d 158

80 P.3d 1162

ROBERT BOOTH ROE, a Minor Child, By and Through his Adoptive Parents, Richard Roe and Janet Roe, and Jennifer Brunetti, Conservator, Appellants, v. DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES FOR THE STATE OF KANSAS, THE STATE OF KANSAS, WAYNE SRAMEK, HERBERT HICKMAN, AND MARY KEADY, Appellees.

No. 89,462

Court of Appeals of Kansas.

Opinion filed December 19, 2003.

Robert S. Tomassi, of Pittsburg, for appellant.

Deborah June Purce, of Law Office of Deborah June Purce, of Topeka, for appellee Mary Keady.

C. William Ossmann, chief litigation attorney, for appellees State of Kansas and Kansas Department of Social and Rehabilitation Services.

Matthew W. Boddington, of Kansas Department of Social and Rehabilitation Services, for appellee Wayne Sramek.

Before KNUDSON, P.J., BEIER and MALONE, JJ.

BEIER, J.:

Robert Booth Roe (Baby Roe), his adoptive parents, and his conservator appeal the district court's summary judgment in favor of defendants, the Kansas Department of Social and Rehabilitation Services (SRS), the State of Kansas, and certain SRS employees. Baby Roe suffered catastrophic injury at the hands of his father despite ongoing SRS monitoring of his family situation and the agency's awareness that his mother had warned exactly such an injury could occur.

Baby Roe was born to Terri and Booth Tuthill in Pittsburg on August 6, 1992. Medical personnel and employees of the Tuthills' residential facility had concerns regarding Baby Roe's parents even before his birth. Specifically, SRS was told by letter that Terri exhibited symptoms of psychosis and depression, that she and Booth abused drugs and alcohol, and that Booth physically abused Terri.

Defendant Mary Keady (Keady), an SRS social worker, was assigned to the matter in June 1992. Keady kept some contemporaneous logs of her efforts regarding the Tuthills. However, her supervisor, defendant Wayne Sramek, permitted Keady to add to these logs after Baby Roe was injured.

Keady attempted to meet with Terri three times before Terri delivered Baby Roe. At the first visit, Terri was "very guarded and untrusting and did not want any part [of] SRS' help." On the second and third occasions, Terri apparently refused to answer her door.

The day after Baby Roe's birth, the Bureau of Indian Affairs (BIA) was notified, pursuant to the Indian Child Welfare Act, because both parents had Native American ancestry. Booth, in particular, was registered by the Quapaw tribe. The hospital launched meetings among nursing staff, psychiatric staff, SRS staff, and BIA staff that day because of its concerns about the Tuthills' ability to care for Baby Roe. The goal, in Keady's words, was to "insure that [the baby] was safe" when he was discharged with his mother. According to notes taken by Terri's obstetrician:

"A meeting was held with nursing staff, psychiatric staff, SRS staff, and two staff persons from the [BIA], to make arrangements for very close home follow up for mother and baby. It was decided that the [BIA] would handle the home care follow up. Concerns were expressed regarding the welfare of the infant at this meeting. It was felt that the patient was exhibiting fairly good mothering instincts and it was hoped that with close home follow up the infant's status could be evaluated. All personnel were made aware of the potential problem and close home follow up is planned by Lisa Lucher [sic] of the [BIA]."

A hospital social worker recorded the following regarding the discharge plan:

"[BIA's] Sally [Whitecrow-]Ollis, Director of Social Services, and Miss Lisa Luther, Child Protection Worker[,] . . . came to the hospital and did interview Terri and Booth and provided assessment for this couple concerning their follow up needs. Both Miss [Whitecrow-]Ollis and Miss Luther met with [hospital staff], concerning the needs of this couple. It was decided that Lisa would be the contact person for Terri and Booth and would provide daily supervision of their care of the infant. The couple met with the team and it was noted that Terri [was] quite anxious and overwhelmed by the number of people involved in working with her and request was made that she relate to one person, and that one person that she had chosen was Lisa Luther from the Indian Social Services Program. Lisa agreed to provide daily supervision and be accessible to Terri and Booth in caring for their son. Plans were for Terri and the infant to remain in the hospital during the weekend to provide further instruction to her in the care of the infant with plans for her and the baby's discharge on Monday morning, August 10th. Lisa will be at the hospital Monday morning and accompany the couple home from the hospital."

Luther testified about one of the meetings with hospital staff as follows:

"A.: [Luther]: I came to work on the morning of August 7th, 1992, and was told by my supervisor that we were going to Pittsburg, and so we went to Pittsburgh.

"Q.: [Mr. Tomassi]: Your supervisor was Sally Ollis?

"A.: Right. And we went to Pittsburg and met with—there was a worker there, but I can not [sic] recall whether it was from—I know it says the mental health workers, but I can not [sic] recall whether they—who it was, whether they were from Kansas SRS, or the mental health community, or who they were.

"Q.: Would you remember any name?

"A.: No.

"Q.: Okay. And what was discussed?

. . . .

"A.: From what I can remember the discussion was between Sally Whitecrow-Ollis and the worker—workers. I believe there were two of them. And the discussion was mainly over jurisdiction, who had jurisdiction on the case.

"Q.: All right. Do you recall what was said?

"A.: Yes. Sally was stating that we had jurisdiction. The workers were trying to immediately pull the child from—or terminate Booth and Terry's [sic] parental rights, and Sally was stating that they did not—they had no jurisdiction, that we had jurisdiction, you know, because we administered the social services for the Quapaw tribe at the time. And there was some discussion back and forth and it was determined the workers just, I guess, backed off, just said okay, you guys have jurisdiction."

Whitecrow-Ollis' memory of these events was that Keady wanted BIA to take "complete charge" of the Tuthill case, but that was not "an option." According to Whitecrow-Ollis, BIA agreed to provide parenting education to Terri; SRS did not ask BIA to investigate child abuse reports and did not expect it to pursue such investigations. Whitecrow-Ollis testified that she did not think BIA was capable of providing full-time services, and the plan was that BIA workers would visit the Tuthills only "once or twice a week and assist in teaching [Terri] whatever it was, trying to keep her calm."

Defendants admit that SRS's role was to monitor the services to be provided to the Tuthills after discharge. According to Keady, this monitoring was to include making sure that BIA was providing services and maintaining contact with the mental health center, i.e., to make sure these entities were following through with planned visits and assistance. She stated that her understanding was that BIA would visit the Tuthills for several hours at least twice a week. She testified she did not know what services were to be provided by mental health workers. Finally, Keady also testified that her role, if she deemed BIA and mental health services to be inadequate, would require her to consult with Sramek and "go from there." Sramek testified that, although it would have been general practice and "possibly would have been appropriate" for SRS to prepare a family services plan for the Tuthills, this was never done. Such a plan would have defined precisely what each agency committed to providing for the family.

Upon discharge from the hospital, Terri and Booth took Baby Roe home to the Oak Place Residential Facility for the mentally ill in Pittsburg. Baby Roe had scored 8 and 9 out of 10 on APGAR birth assessments, and he went home in "good" condition. Health care workers at the residential facility also had documented a care plan. They noted that BIA "agreed to place a worker in the home 8am-5pm[,] Mon[day] thru Fri[day] to help teach Terri how to take care of the baby." They also noted BIA had jurisdiction to determine whether Baby Roe should be placed outside of the family.

Luther conducted at least some of the anticipated home visits to Terri and Baby Roe. She described Terri as lacking "basic parenting skills" and said the same of Booth. Luther did not recall ever meeting with SRS or giving SRS staff written reports about her visits to the Tuthill home. She also did not recall receiving information about Terri or Booth from SRS. She remembered only that Ollis told her Terri was "mildly psychotic" and Booth was "mildly retarded." Luther soon left her position as a BIA child protection worker.

Community mental health worker Jeanne Brown testified in her deposition that BIA workers never spent full weekdays with Terri and Baby Roe. By August 17, Luther had been replaced by BIA worker Linda Turner Smith, and Smith reported that her initial relationship with Terri on that date was "uneasy" because there already had been a lapse of services since Luther's departure. In addition, Whitecrow-Ollis testified that eventually Terri would no longer let Smith into the Tuthill home. Whitecrow-Ollis said she was sure BIA reported this development to SRS as well as mental health workers. Keady testified that she was told as early as August 18 that mental health staff were having trouble getting access to the Tuthill home. This concerned her, she said, because it made monitoring impossible.

On September 24, 1992, Brown documented a conversation with Terri in which Terri stated she was afraid that Booth would hurt Baby Roe by shaking him too hard and that Terri would be unable to stop him. This was reported to SRS child protection services.

On September 25, 1992, Sramek told Keady about...