Shaw v. Katz

• Decision Date: 19 December 2016
• Docket Number: CV166067116S
• Court: Connecticut Superior Court
• Parties: Joel Shaw et al. v. Joette Katz et al

Joel Shaw et al. v. Joette Katz et al

No. CV166067116S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

December 19, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO DISMISS

A Susan Peck, Judge

On March 30, 2016, the plaintiffs, Joel Shaw and Michelle Shaw filed a twenty-one-count complaint sounding in failure to train pursuant to 42 U.S.C. § 1983, federal procedural due process violations, breach of contract, negligence, gross negligence, recklessness, intentional infliction of emotional distress, negligent infliction of emotional distress defamation and state constitutional due process violations against seventeen defendants. The defendants are: Joette Katz, the Commissioner of the Department of Children and Families (DCF); Velvette Royal, DCF social worker; Patricia Zuccarelli, DCF regional administrator; Maritza Acosta, DCF program manager; Kasia Sikora-Kowolik, DCF social work supervisor; Mark Williams, DCF social worker; Scott Johnson, DCF social worker; Pamela Kelley, DCF program manager Lucia Roman-Vallario, DCF social work supervisor; the Waterford Country School, Inc. (WCS); William Martin, WCS Executive Director; Chris Lacey, WCS program manager; Dawn Caruso, WCS foster support worker; Sandra Couillard, WCS program director; David Pfeidder, WCS social worker; Rachel Newer, WCS family trainer and support worker; and Lisa Duzy, WCS foster care supervisor.^[1]

The plaintiffs' complaint alleges the following facts. On July 22, 2013, the plaintiffs were licensed as foster parents through WCS. The plaintiffs were officially licensed as regular--not therapeutic--foster parents, with the specific intent to adopt. On November 27, 2013, two boys, O.C., age four, and N.C., age five, were placed with the plaintiffs by Waterbury DCF. At the time of this placement, both O.C. and N.C. required a therapeutic foster home given their difficult history and aggressive behavior, but DCF did not make the plaintiffs aware of this, nor were the plaintiffs licensed to provide therapeutic care. Additionally, DCF had not entered into a contract with a private agency, such as WCS, to provide the necessary therapeutic services to O.C. and N.C.

The complaint further alleges that on December 3, 2013, the plaintiffs informed the defendant Williams that things were not going well with O.C. and N.C., and notified the defendant Williams of O.C. and N.C. 's behaviors, which included sexual touching, as well as physical aggression toward one another. On that same day, DCF signed a contract with WCS to provide services to the plaintiffs and O.C. and N.C., which included, among other things, clinical support to the plaintiffs and O.C. and NC., parenting education and support to the plaintiffs, and helping the plaintiffs identify local support and services for O.C. and N.C. Additionally, on January 13, 2014, WCS signed two " therapeutic foster care agreements" with the plaintiffs, one for each boy.^[2] The purpose of the agreement was to define the roles and responsibilities of both the plaintiffs and WCS, where WCS agreed to act as a liaison between the plaintiffs and DCF, and also agreed to continue to provide ongoing services and training to the plaintiffs. The plaintiffs allege, however, that despite these agreements, neither the plaintiffs nor O.C. and N.C. received the support they required. For example, while it was identified that O.C. and N.C. required a behaviorist, one was never sent to the plaintiffs' home, and between DCF and WCS, neither could identify which agency was responsible for what.

Additionally, the plaintiffs allege that on July 16, 2014, the plaintiff Joel made a remark that he had to apply pressure to N.C. 's palm in order to get his attention and control his aggressive, antisocial behavior. As a result of this remark, DCF began an investigation of the plaintiff Joel, and the defendant Royal was assigned as the DCF investigator. As a result of the investigation, the defendant Royal substantiated claims of emotional abuse and neglect; O.C. and N.C. were removed from the plaintiffs' home; and the plaintiffs' foster care license was revoked by WCS on September 23, 2014. The plaintiff Joel appealed the substantiations made by the defendant Royal, and on July 21, 2015, a hearing officer reversed and dismissed all substantiations against the plaintiff Joel. In doing so, the hearing officer stated that the placement should have been preserved, and that the actions of DCF were not in the best interests of N.C. and O.C. Additionally, the hearing officer stated that the plaintiffs were not provided with the appropriate training once O.C. and N.C. were determined to be at the therapeutic level, and were therefore not properly equipped to handle O.C and N.C. 's needs. Upon receiving notice of the hearing officer's decision, the plaintiffs began the process of becoming re-licensed as foster parents through DCF. On November 25, 2015, however, DCF denied the plaintiffs' reapplication, but did not specify the reasons for doing so. As a result of these circumstances, the plaintiffs filed the present twenty-one-count complaint against the defendants, seeking redress in the form of monetary damages and injunctive relief for the alleged psychological, emotional, and financial harm that they have suffered.

The complaint alleges that Katz was " served as Commissioner of the Department of Children and Families (DCF)" and " is sued individually and as Commissioner." Complaint, ¶ 3. As to the remaining individual DCF defendants, the complaint specifically alleges that each is sued only in his or her individual capacity. See Complaint, ¶ ¶ 4-11.

On June 2, 2016, the defendants filed the instant motion to dismiss counts one, three, five, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, and twenty-one of the plaintiffs' complaint, along with a supporting memorandum of law. The defendants move to dismiss counts one and three, the federal law claims, on the ground that the court lacks subject matter jurisdiction because the defendants are being sued in their official and individual capacities for monetary damages and therefore, the action is barred by federal sovereign immunity. The defendants move to dismiss counts five, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, and twenty-one, the state law claims, on the ground that the court lacks subject matter jurisdiction because the defendants are being sued in their official state capacities and therefore, the action is barred by sovereign immunity. In the alternative, if the court were to conclude that the defendants are being sued in their individual capacities, the defendants move to dismiss the state law claims on the ground that the defendants are immune from suit pursuant to statutory immunity.

The plaintiffs filed a memorandum in opposition to the motion to dismiss on June 30, 2016. The matter was heard at the short calendar on July 18, 2016. During oral argument, the plaintiffs' counsel withdrew counts two and twenty-one, as well as the prayer for injunctive relief, from the plaintiffs' complaint. Subsequently, at a status conference held by the court on August 3, 2016, the plaintiffs' counsel indicated that she wished to retract the withdrawal made in open court, which request was conditionally granted by the court.^[3] On August 4, 2016, the plaintiffs filed a supplemental memorandum in opposition to the defendants' motion to dismiss stating that the withdrawal at oral argument was made in error and indicating that the plaintiffs were reinstating counts two and twenty-one, as well as the prayer for injunctive relief. In response, on August 29, 2016, the defendants filed a supplemental memorandum in support of the motion to dismiss that addressed the reinstatement of the prayer for injunctive relief. Thereafter, on August 31, 2016, without referencing any individual counts, the plaintiffs filed a withdrawal (entry #135), of all claims for injunctive relief.

I

MOTION TO DISMISS

SUBJECT MATTER JURISDICTION

" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women's Center, 314 Conn. 709, 718, 104 A.3d 671 (2014). " [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).

" Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " Federal sovereign immunity jurisprudence applies to claims raised under federal law and state...