Schulkers v. Kammer

Citation367 F.Supp.3d 626
Decision Date08 February 2019
Docket NumberCIVIL ACTION NO. 2:17-076 (WOB-CJS)
Parties Holly SCHULKERS, et al., Plaintiffs v. Elizabeth KAMMER, et al., Defendants
CourtU.S. District Court — Eastern District of Kentucky

E. Andre Busald, Gail M. Langendorf, Busald, Funk & Zevely PSC, Florence, KY, Paul J. Hill, Ft. Mitchell, KY, for Plaintiffs.

Kimberly Jenci Hawthorne, D. Brent Irvin, Kentucky Cabinet for Health and Family Services Office of Legal Services, Frankfort, KY, Ellen M. Houston, Michael Joseph Enzweiler, Dressman Benzinger LaVelle P.S.C., Crestview Hills, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

William O. Bertelsman, United States District JudgeThis matter is before the Court on the Kentucky Cabinet for Health and Family Services ("CHFS") defendants' motion to dismiss or in the alternative motion for summary judgment. (Doc. 56). The Court previously heard oral argument on this motion and took it under submission. (Doc. 73).

After further study, the Court now issues the following Memorandum Opinion and Order.

Factual and Procedural Background1

On February 8, 2017, Plaintiff Holly Schulkers was admitted to St. Elizabeth Medical Center, Inc. ("St. Elizabeth") for a scheduled labor induction. (Doc. 34, ¶ 14). Holly's prenatal lab tests were "negative" for substance dependency or abuse; she had no history of drug use and would not require drug treatment upon delivering her child. Id. at ¶ 32. Nonetheless, roughly sixteen hours before Holly eventually gave birth, St. Elizabeth's tested a sample of Holly's urine and, without running a confirming test,2 charted a "presumptive positive" result for opiates. Id. at ¶¶ 28, 33; (Doc. 21-1 at 9 (sealed) ). Holly did not consent to a urine or blood test

for drugs; nor was she ever told that such a test had been performed. (Doc. 34, ¶¶ 16, 17, 33). The report, nevertheless, stated: "Results should not be used for non-medical purposes." (Doc. 34, ¶ 27); (Doc. 21-1 at 9).

Holly gave birth to AMS without complications on February 9, 2017. (Doc. 21-2 at 12–13).3 Within the first hour after giving birth, Holly breastfed AMS. (Doc. 34, ¶ 16). On the morning of February 10, 2017, Holly's husband, Plaintiff David Schulkers, was informed by the pediatrician that the plan was to discharge mother and child sometime in the afternoon. Id. at ¶¶ 14–15.

A short time later, however, Holly was visited by Defendant Anne Marie Davis, a care coordinator and social worker with St. Elizabeth's. Davis informed Holly that she had tested positive for opiates and that AMS's umbilical cord was also tested but the results were pending. Id. at ¶¶ 16, 8. Holly explained to Davis that she had eaten Stacey's Everything Bagel Chips, which contained poppy seeds, and had taken some of her daughter's prescription cough

medicine. Id. at ¶¶ 16, 19. Davis responded that none of these items would cause a positive result unless the cough medicine contained codeine, which Holly was unable to confirm at the time. Id. at ¶ 16; (Doc. 21-1 at 2).4

Before receiving the toxicology results for the umbilical cord, Davis charted that Holly had a "Substance Use Disorder." (Doc. 21-1 at 1). Pursuant to her affirmative duty under Kentucky law,5 Davis then reported to the Kentucky Cabinet for Health and Family Services via a web-based reporting system that Holly had a "positive drug screen" (the "Report"). (Doc. 67-3 at 1 (sealed) ); (Doc. 34, ¶¶ 17, 25–26).6 The CHFS intake worker who received the report did not speak with anyone at St. Elizabeth's. (Doc. 67-4, Grimes Dep. at 37, 48). CHFS accepted the report, concluding that Holly posed a "Risk of Harm"7 for "testing positive for medication not prescribed to her" and assigned the case to Defendant Alison Campbell. (Doc. 67-3 at 3).

Later that day, Defendant Deborah Cinque, a St. Elizabeth Nurse Manager, informed the Schulkers that AMS could not be discharged because hospital policy required she be observed for 72 hours for symptoms of withdrawal. (Doc. 34, ¶ 20); (Doc. 21-1 at 61). Holly was discharged and was allowed to continue breastfeeding AMS during the 72-hour observation period. (Doc. 34, ¶ 21).

A. "The Prevention Plan"

On the evening of February 10, two social workers with CHFS, Defendants Elizabeth Kammer and "Kara," entered Holly's hospital room. Holly was told she had tested positive for heroin. (Doc. 34, ¶ 35). Holly insisted there had been a mistake and explained that she was a child care worker, her son's basketball coach, volunteered at the school cafeteria, and did not use drugs. Id. When Kammer requested Holly submit to another drug test, Holly agreed, and nurses obtained another urine sample for testing. Id. at ¶ 36; (Doc. 21-1 at 5, 10–11). In the meantime, Kammer, who was still in training at the time, placed a phone call to Campbell, her supervisor. Campbell spoke with Holly and stated that "until this gets figured out you are no longer allowed to be around any children without the supervision of approved individuals." (Doc. 34, ¶ 37); (Doc. 67-8, Kammer Dep. at 8–10).8 After this call, Kammer presented the Schulkers with a predominately handwritten "Prevention Plan." (Doc. 67-9 (sealed) ).

The one-page Prevention Plan states—in handwritten ink—that Holly was prohibited from having contact "with all children" unless an approved supervisor was within "eye & ear shot at all times (24/7)." (Doc. 34, ¶ 41). Kammer explained that a violation of these terms would result in the Schulkers' children being removed from their care. Id. at ¶¶ 41–42. Stamped at the bottom of the document, in all capital lettering, it states: "ABSENT EFFECTIVE PREVENTATIVE SERVICES, PLACEMENT IN FOSTER CARE IS THE PLANNED ARRANGEMENT FOR THIS CHILD." Id. at ¶ 40. In truth, there was no planned arrangement for foster care. Rather, the foreboding stamped language is standard on every prevention plan at CHFS . (Doc. 67-6, Campbell Dep. at 96–97 (sealed) ). The Schulkers were vehemently opposed to signing the document. (Doc. 67-2, David S. Aff., ¶ 6); (see Doc. 67-1, Holly S. Aff., ¶ 8). Yet the Schulkers were told if they did not agree to the Prevention Plan, their children would be removed from their care "and after that" CHFS would seek court intervention. (Doc. 34, ¶ 42); (Doc. 67-1, ¶ 6). Under these conditions, Kammer and the Schulkers signed the plan. (Doc. 34, ¶ 42); (Doc. 67-9).

Holly's night nurse questioned the Prevention Plan and reported that the doctors and staff believed the initial toxicology test to be a false positive. (Doc. 34, ¶ 43).9 She added that a number of "presumptive" positive tests had occurred in the past and women with open cases were generally allowed to leave with their newborns because CHFS did not get involved until the test was confirmed with an umbilical cord test. Id. Overhearing this, Defendant Kara pulled Holly's night nurse aside in the hallway and rebuked her, stating: "We are supposed to be working as a team, why are you pitting them against me?" Id.

B. False Positive Revealed by Negative Subsequent Testing

After Kammer and Kara left, Holly's night nurse called St. Elizabeth's lab and advised the Schulkers that St. Elizabeth's uses a lower threshold level than required by federal regulations. Id. at ¶ 45. Two hours after signing the Prevention Plan, Holly's second urine test results—this time conducted with a Drug of Abuse with Reflex to Confirmation test—were returned as negative for any illegal substances. Id. at ¶ 46; (Doc. 21-1 at 89–90). Holly's nurse at the time phoned Kammer and left a voicemail. (Doc. 34, ¶ 46). However, staff at St. Elizabeth's, including Defendant Cinque, refused to discharge AMS. Id.

The next morning, on February 11, 2017, Dr. James Otrembiak came to check on AMS. He discussed the initial toxicology results with the Schulkers and informed them that eating poppy seed bagel chips could cause a false positive. Further, he reported that on the previous day he had received a phone call from a CHFS social worker, during which he advised that there must have been a mistake with the initial drug screen. Id. at ¶ 47. Indeed, Dr. Otrembiak later charted:

AWAITING DISPOSITION FROM SOCIAL SERVICE. NO NOTE IN CHART ... Mom's repeat drug screen negative. Baby's cord blood drug screen still pending. Mom states she took some cough

med[icine] prior to delivery and also had a bag of Stacy[']s chips with Poppy seeds while in labor. She showed me the bag! (poppy seeds, delsum, are among the Products that can cause a false positive for opiates on drug screen[) ]. Planning on discharge tomorrow.

Need final disposition for discharge from social service.

(Doc. 21-2 at 8 (sealed) ).

That afternoon, at 1:32 p.m., St. Elizabeth's received the umbilical cord toxicology results, which were also negative for illegal substances. Twenty minutes later, a St. Elizabeth social worker e-mailed Kammer the results from the umbilical cord and Holly's second urine screen test. (Doc. 21-1 at 3); (Doc. 34, ¶ 48). Kammer confirmed to Holly she had received both. (Doc. 34, ¶ 48).

Although both tests were negative for drugs, before AMS could be discharged social services was required to approve the discharge. (Doc. 34, ¶ 95). The Schulkers were permitted to take their child home the following day, February 12, at 10:30 a.m. (Doc. 21-2 at 1); (Doc. 34, ¶ 53). A St. Elizabeth social worker received a copy of the Child Protective Services ("CPS") discharge plan, and noted that "Per CPS plan, [AMS] may discharge to [Holly] under supervision of an approved supervisor. At this time both Mary Schulkers and David Schulkers (spouse) are approved supervisors." (Doc. 34, ¶ 95); (Doc. 21-1 at 12-13); (Doc. 21-2 at 4-5).

C. The CHFS Investigation Continues

On Monday morning, February 13, 2017, Holly called Kammer and asked to be released from the Prevention Plan, to which Kammer responded that she needed to talk to Campbell because she was unsure how to proceed in the event of a false positive drug test. Campbell refused to lift the Prevention Plan. Consequently,...

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4 cases
  • Schulkers v. Kammer
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 30, 2020
    ...exercise of power without any reasonable justification in the service of a legitimate governmental objective.’ " Schulkers v. Kammer , 367 F. Supp. 3d 626, 637 (E.D. Ky. 2019) (quoting Lewis , 523 U.S. at 845–46, 118 S.Ct. 1708 ). This Court has held that "[i]t is clearly established that t......
  • Clark v. Stone
    • United States
    • U.S. District Court — Western District of Kentucky
    • July 28, 2020
    ...v. Kammer to support their contention that the right they assert is clearly established. 955 F.3d 520 (6th Cir. 2020) aff'g 367 F. Supp. 3d 626 (E.D. Ky. 2019). In Schulkers , the Sixth Circuit affirmed a decision of the Eastern District of Kentucky and found that the plaintiffs’ substantiv......
  • Holliday v. Leigh
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • June 15, 2020
    ...in the face of compelling evidence that the child was safe. See Schulkers v. Kammer, 955 F.3d 520 (6th Cir. 2020); Schulkers v. Kammer, 367 F. Supp. 3d 626, (E.D. Ky. 2019). This case is now before the Court on defendants' motions for summary judgment seeking the dismissal of Holliday's cla......
  • Bambach v. Lapeer Cnty.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • May 29, 2020
    ...Coley v. Lucas Cnty., 799 F.3d 530, 542 (6th Cir. 2015) (quoting Taylor v. MDOC, 69 F.3d 76, 81 (6th Cir. 1995); Schulkers v. Kammer, 367 F.Supp.3d 626, 647 n.12 (E.D. Ky. 2019). Plaintiffs argue that this law was clearly established before Shaw began working with Moegle in late December, 2......

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