Underwood v. W. Va. Dep't of Health & Human Res.
| Decision Date | 28 May 2013 |
| Docket Number | CIVIL ACTION NO. 2:11-cv-00506 |
| Parties | AMANDA UNDERWOOD, Plaintiff, v. THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al., Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Pending before the court are several motions for summary judgment. The defendants have filed four motions for summary judgment: 1) a combined motion for summary judgment by defendants Kathryn A. Bradley, Justin Castleman, John Doe(s), Mary Doe(s), Shelly Nicewarner, Tzouri Oliver, and Unknown Employees of the Department of Health and Human Resources [Docket 67]; 2) Mary Carper's motion for summary judgment [Docket 64]; 3) John Najmuski's motion for summary judgment [Docket 69]; and 4) WVDHHR's motion for summary judgment [Docket 71]. All defendants filed a joint supplemental memorandum in support of their motions for summary judgment [Docket 141]. The plaintiff filed a motion for summary judgment [Docket 92], and a supplemental motion for summary judgment [Docket 139] along with a supplemental memorandum in support [Docket 140].
For the reasons described below, the defendants motions [Dockets 64, 67, 69, 71] are GRANTED, and the plaintiff's motions [Dockets 92, 139] are DENIED.
This case arises from the plaintiff's allegations that the defendants violated her constitutional rights and negligently inflicted emotional distress to her in the process of removing her children from her custody and later permanently terminating her parental rights.
The events that led to this case initially concerned a different child, M.H., who lived in plaintiff Amanda Underwood's household. M.H. is the daughter of Underwood's live-in boyfriend, Travis Harrell, and Kristy Imbach. Underwood and Harrell have two children together, C.H.1 and C.H.2. On July 7, 2009, West Virginia Department of Health and Human Resources ("WVDHHR") employees Mary Carper (also a defendant in this action) and Andrew Brown visited the home of Underwood and Harrell to speak with M.H. concerning allegations of abuse by Imbach and Imbach's boyfriend. According to Underwood, she asked them to return later when Harrell would be home. Instead of doing so, the WVDHHR employees called the state police. The state trooper arrived and Underwood allowed him and the WVDHHR employees in her home to talk to M.H. WVDHHR observed the interactions of Underwood, M.H., C.H.1, and C.H.2.
On July 10, 2009, there was a hearing before Circuit Judge John C. Yoder concerning M.H. (Am. Transcript [Docket 139-1] at 33-40). Assistant Prosecuting Attorney Kimberly Crockett presented an Amended Temporary Order of Custody ("custody order") that granted WVDHHR temporary custody of M.H. Because Prosecutor Crockett then moved to orally amended the proposed custody order to add C.H.1 and C.H.2. (Id. at 37). The court granted the motion to amend (Id. at 39) over the objections of Mr. Harrell's attorney Mr. Buck. (Id. at 38) ("In regard to other children, we have absolutely no notice, I'm just completely bushwhacked as to how to stand upand proceed with this when the only petition before us is regarding [M.H.] . . . I certainly object to any kind of modification . . . At this time there's no notice to [Mr. Harrell], not [sic] opportunity to respond."). At this time, there was no petition filed that mentioned C.H.1, C.H.2, or Underwood. (See Am. Petition [Docket 139-1], at 1). At the end of the hearing, the court appointed Ms. Dalby, who was not present, as counsel for Underwood. (Am. Transcript [Docket 139-1] at 40). Later that day, Ms. Underwood's children were removed from her home by the WVDHHR. The written custody order, listing all three children and Underwood, was filed in the Circuit Court of Berkeley County, West Virginia on July 13, 2009. (Am. Order of Temporary Custody [Docket 139-1], at 41-44). The second amended petition added C.H.1 and C.H.2 and included allegations of unfitness against Underwood. The plaintiff alleges the petition was not filed until July 15, 2009, and the defendants allege that it was docketed on July 13, 2009 even though the petition is stamped July 15, 2009 and the notarized signature verifying the petition is dated July 15, 2009. (Second Am. Petition [Docket 141-4]; Docket Sheet [Docket 141-5]). The plaintiff argues the docket sheet entry of the petition on July 13, 2009 is an error.
On July 20, 2009, a preliminary hearing was held before the Circuit Court. At this hearing, the plaintiff contends WVDHHR and the children's guardian ad litem agreed that the children should be returned to Ms. Underwood's legal and physical custody. The defendants, however, dispute that Ms. Underwood was granted legal custody, alleging instead that she only received physical custody and that WVDHHR retained legal custody subject to Ms. Underwood completing a safety plan.
On July 27, 2009, one week after the children were returned to Underwood, Carper instructed Underwood to bring the children to the Berkeley County Office of the WVDHHR. Theplaintiff alleges Carper threatened to have her arrested for kidnapping if she did not bring in the children. (Pl.'s Supplemental Mem. Supp. Supplemental Mot. Summ. J. [Docket 140], at 6). Underwood complied, and Ms. Carper then removed the children from Underwood's custody. There was no preliminary hearing regarding the events on July 27, 2009.
A third amended petition was filed in August 2009, adding a new allegation that Underwood and Harrell failed to keep their children's immunizations current. (Third Am. Petition [Docket 139-2], at 9). On August 14, 2009 a hearing was held, and at this hearing, Underwood admitted to the new immunization allegation in the third amended petition. (Transcript of August 14, 2009 Hearing [Docket 149-2], at 79-81). Underwood specifically waived her right to a full evidentiary hearing. (Id. at 80-81). Based on this admission, the Court found that the children were neglected and then began an improvement period for Underwood. (Id. at 81).
Underwood attempted to comply with the improvement period requirements to regain full custody of her children. She was ultimately unsuccessful, and her parental rights were terminated in November 2010. Underwood filed a Motion to Reconsider the termination, which the court denied on May 3, 2011. In its order, the Circuit Court did acknowledge that WVDHHR had made several serious legal errors, including the fact that both legal and physical custody of the children were returned to Ms. Underwood on July 20, 2009, and therefore WVDHHR violated Ms. Underwood's rights by taking the children on July 27, 2009, without court ratification or setting a date for a preliminary hearing to determine if the children were in imminent danger. (Order [Docket 139-2], at 5). However, because Underwood had failed to find stable employment and housing, show up for her visitation times, and comply with other requirements of the improvement period, the court did not overturn the termination of her parental rights. (Id. at 7-8).
As described above, after the plaintiff's parental rights were terminated in November 2010, the plaintiff filed a motion to reconsider termination in Circuit Court on January 14, 2011, and it was denied in May 2011. On June 30, 2011, the plaintiff appealed to the Supreme Court of Appeals of West Virginia ("SCAWV"), alleging violations of the U.S. Constitution, the West Virginia Constitution, and West Virginia Code § 49-6-9(f). On the same day, the plaintiff also filed a Writ of Habeas Corpus. SCAWV denied the Writ of Habeas Corpus on September 8, 2011.
On September 26, 2011, SCAWV affirmed the Circuit Court's termination of Ms. Underwood's parental rights. In that memorandum opinion, SCAWV found that the plaintiff's due process rights were not violated by the July 27, 2009 taking of her children because she received only "physical custody on a probationary basis," at the July 20, 2009 hearing. (SCAWV Memorandum Decision [Docket 149-1], at 27). By entering into the safety plan, Underwood had also "waived her right to a preliminary hearing" and therefore "no particular findings of imminent danger were required as to her due to this arrangement." (Id.). When Underwood failed to follow the terms of the safety plan, WVDHHR was within its right to remove the children without having a new petition and preliminary hearing. SCAWV further held that the plaintiff had waived any alleged due process violations because she failed to raise the issue, despite being represented by counsel at the time. (Id.). It additionally affirmed the termination of Underwood's parental rights. (Id. at 28).
The plaintiff filed this action on July 25, 2011. The plaintiff's amended complaint names as defendants: WVDHHR; John J. Najmuski, in his official capacity as Commissioner of WVDHHR; Kathryn Bradley, Community Services Manager of the Berkeley/Jefferson/Morgan CountyOffices of WVDHHR, in her individual capacity; Mary Carper, in her individual capacity; Justin Castleman, in his individual capacity; Tzouri Oliver, in his individual capacity; Shelly Nicewarner, in her individual capacity; Unknown Employees of WVDHHR and Supervisors of Mary Carper, in their individual capacities; Mary Doe(s), in her individual capacity; and John Doe(s), in his individual capacity.
The plaintiff's amended complaint contains seven counts, and the first two were dismissed by my earlier order [Docket 20]. Count Three asserts a claim under 42 U.S.C. § 1983 for a violation of the plaintiff's Fourteenth Amendment Due Process rights, and seeks compensatory and punitive damages. The Complaint contains two counts labeled "Count Four." The first Count Four (hereinafter "Count Four (A)") asserts a § 1983 claim for violation of the Fourth Amendment protection against illegal search and seizure, and seeks compensatory and punitive damages. The second Count Four (hereinafter "Count Four (B)") seeks an order...
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