Schulkers v. Kammer

• Citation: 955 F.3d 520
• Decision Date: 30 March 2020
• Docket Number: No. 19-5208,19-5208
• Parties: Holly SCHULKERS, individually and as mother and next of friend to B.R.B., B.O.B., and A.M.S; David Schulkers, individually and as father and next of friend to E.E.S. and E.M.S., Plaintiffs-Appellees, v. Elizabeth KAMMER, Alison Campbell, and Kara [Unknown], Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

955 F.3d 520

Holly SCHULKERS, individually and as mother and next of friend to B.R.B., B.O.B., and A.M.S; David Schulkers, individually and as father and next of friend to E.E.S. and E.M.S., Plaintiffs-Appellees,

v.Elizabeth KAMMER, Alison Campbell, and Kara [Unknown], Defendants-Appellants.

No. 19-5208

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2019

Decided and Filed: March 30, 2020

ARGUED: S. Chad Meredith, COMMONWEALTH OF KENTUCKY, Frankfort, Kentucky, for Appellants. Paul J. Hill, Ft. Mitchell, Kentucky, for Appellees. ON BRIEF: David Brent Irvin, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellants. Paul J. Hill, Ft. Mitchell, Kentucky, for Appellees.

Before: DAUGHTREY, CLAY, and GRIFFIN, Circuit Judges.

CLAY, Circuit Judge.

Defendant social workers employed by the Kentucky Cabinet for Health and Family Services interlocutorily appeal the district court’s order denying their motion for summary judgment on qualified immunity grounds. Plaintiffs, a family consisting of two parents and five children, assert that Defendants violated their Fourth Amendment rights by subjecting four of the children to warrantless in-school interrogations without reasonable suspicion of child abuse. Plaintiffs also assert that Defendants violated their Fourteenth Amendment rights by requiring Plaintiffs to adhere to a "Prevention Plan," which constrained the plaintiff-mother’s ability to be alone with her children for approximately two months without any question as to her parental fitness and without any procedural protections. For the reasons that follow, we affirm in part and reverse in part the district court’s order.

STATEMENT OF FACTS

A. A.M.S.’s Birth and the Initial Drug Test

In February 2017, St. Elizabeth Medical Center, Inc. ("St. Elizabeth") admitted Plaintiff Holly Schulkers ("Holly") for a scheduled labor induction. Prior to giving birth, St. Elizabeth tested a sample of Holly’s urine, which returned a "presumptive positive" result for opiates. Holly did not consent to the urine testing, and she was never told that the testing would be performed.

Approximately sixteen hours after the urine testing, Holly gave birth to her newborn child, A.M.S., without complications. Holly breastfed A.M.S. within the first hour of giving birth. The hospital pediatrician examined A.M.S. and advised Plaintiff David Schulkers ("David") that the hospital intended to discharge Holly and A.M.S. later that afternoon.

Shortly after the pediatrician left Holly’s hospital room, Anne Marie Davis, a care coordinator and social worker with St. Elizabeth, visited Holly in her hospital room. Davis informed Holly that her urine had tested positive for opiates, and asked Holly if she was taking any medications. Holly responded that she had recently taken some of her daughter’s prescription cough

medicine and that she had eaten a bag of chips that contained poppyseeds prior to giving birth. Holly was unable to confirm if the cough

medicine contained codeine, which Davis stated could cause a positive result for opiates. Holly inquired whether her consumption of poppyseed chips prior to giving birth could have caused the false positive. Davis responded that it could not. Davis informed Holly that A.M.S.’s umbilical cord was also tested, but the results were still pending. Davis further informed Holly that depending on the results of the umbilical-cord testing, the hospital might contact the Kentucky Cabinet for Health and Family Services ("CHFS").¹

St. Elizabeth did not perform a confirmatory test, known as a "Drug of Abuse with Reflex to Confirmation" test, on Holly’s first urine sample even though that sample was still available. Before receiving the results for the umbilical cord testing, Davis charted that Holly had a positive drug screen and indicated that Holly had a "substance use disorder" even though St. Elizabeth’s records indicated that Holly’s prenatal lab tests had all been negative for substance abuse and that she had no history of drug use.

At some point after speaking with Holly but before receiving the results for the umbilical cord testing, Davis reported to the CHFS via a web-based reporting system that Holly had a positive drug screen. The transmission stated:

Holly [Schulkers] delivered baby on 2/9. [Urinary Drug Screen] was positive for opiates 200. At first Holly did not know why she would have had a positive drug screen. No prescriptions. Later she stated she was taking her other daughter’s prescribed cough

medicine. Asked if there was codiene [sic] in the cough medicine as this would account for positive screen. Holly did not know. Holly has 4 other biological children in her custody. Baby’s [umbilical] cord was sent for tox screen.

R. 67-3, CHFS Intake Summary, Pg. ID 1542.

The report was received by Bethany Grimes, a centralized intake social worker with the CHFS, who is responsible for determining whether a report meets the CHFS’s criteria for opening a case. Grimes understood from the report that Holly was the primary caregiver to five children, including newborn A.M.S. Pursuant to the CHFS’s Standards of Practice ("SOPs"), Grimes decided to open a case to investigate abuse or neglect of Holly’s children because she thought that the children might be at a "risk of harm." R. 67-3, Grimes Dep., Pg. ID 1556. According to the relevant SOP, a child is at a risk of harm if "the caretaker engages in a pattern of conduct that renders him or her incapable of caring for the immediate and ongoing needs of the child due to incapacity due to alcohol or other drugs."² Id. ; see also R. 67-7, SOP 2.3, Pg. ID 1624, 1632. The case was assigned to Defendant Allison Campbell, the supervisor of Defendants Elizabeth Kammer ("Kammer") and Kara ("Kara").³

Later that afternoon, Holly and David were informed that A.M.S. could no longer be discharged because hospital policy required staff to observe A.M.S. for seventy-two hours for symptoms of withdrawal. St. Elizabeth permitted Holly to continue breastfeeding A.M.S. during the seventy-two hour observation period.

B. The Prevention Plan

On the evening of that same day (the day of A.M.S.’s birth), two CHFS social workers—Defendants Kammer and Kara—visited Holly in her hospital room. Defendants asked Holly for the names of her other children and where they went to school, and inquired about Holly’s "drug abuse." Holly insisted that there was an error with the initial test because she did not use drugs, worked at a childcare center, was her son’s basketball coach, and volunteered in a school cafeteria. Kammer asked Holly to submit to another drug test, and Holly agreed. Holly’s urine was tested for the second time at 7:55 p.m. that evening. The results from the umbilical cord test performed earlier that day were still pending.

At that point, Kammer, who was still in training at the time, called her supervisor, Defendant Allison Campbell. Campbell spoke with Holly and asked her, "[h]ow did the heroin get into your system?" R. 34, Am. Compl., Pg. ID 514. When Holly insisted that the test was a false positive, Campbell told her, "[w]ell, until this gets figured out you are no longer allowed to be around any children without the supervision of approved individuals." Id.

After the conversation with Campbell, and while the toxicology results of the umbilical cord test and second urine test were still pending, Kammer presented Holly with a predominately handwritten, single-page document, titled "Prevention Plan." According to Plaintiffs, Kammer explained to Holly that if Holly failed to follow the Prevention Plan’s terms, all of the children in her house would be removed from Holly’s care "and after that" the CHFS would seek a court order. Id. at Pg. ID 514–15. The Plan provided that Holly was required to have "supervised contact with all children by approved supervisors until notified by CHFS." R. 67-9, Prevention Plan, Pg. ID 1659. According to the Plan, "supervision" means that Holly could not be alone with her children and must remain within "eye & earshot" of approved supervisors "at all times (24/7)." Id.

Kammer approved David Schulkers (Holly’s husband) and Mary Schulkers (Holly’s mother-in-law) as supervisors. Kammer informed Holly and David that "if the supervisor steps out of the room, Holly has to follow and if the supervisor has to go to the bathroom Holly has to remove herself until the supervisor returns" and "said [that] if any restrictions were violated the children would ‘be removed.’ " R. 34, Am. Compl., Pg. ID 515. Stamped at the bottom of the document and in all capital letters, the Prevention Plan stated: "Absent effective preventative services, placement in foster care is the planned arrangement for this child." R. 67-9, Prevention Plan, Pg. ID 1659. However, the CHFS had not planned any arrangement for foster care for A.M.S. Instead, that language is stamped on every prevention plan that the CHFS provides.

Under these conditions, the Schulkers signed the document less than 30 hours after giving birth and under the belief that if they did not agree to the Prevention Plan, all of the children in their house would be removed from Holly’s care "and after that" the CHFS would seek a court order.

At one point, while Kammer and Kara were still in the room, Holly’s night nurse questioned the Prevention Plan and reported that A.M.S. was clearly healthy and that the nursing staff and doctors believed that Holly’s first urine test was a false positive. The nurse also pointed out that, in the past, other women with open cases were allowed to leave the hospital with their newborns, and that she had seen several situations in which the CHFS would not get involved regarding "presumptive positive" results on expectant mothers until after the results were confirmed with umbilical cord testing. In response to these comments, Kara pulled the night nurse aside in the hallway and said, "[w]e are supposed to be working as a team, why are you pitting them against me?" R. 34,...