Wendrow v. Mich. Dep't of Human Servs.
| Decision Date | 28 August 2013 |
| Docket Number | No. 13-1211,No. 12-1496,No. 12-1497,12-1496,12-1497,13-1211 |
| Parties | THAL FLAM WENDROW; JULIAN WENDROW; THAL FLAM WENDROW, Parent and Conservator of AW and IW, minors; AW, a minor child by Thal Flam Wendrow, Parent and Conservator; I.W. a minor child by Thal Flam Wendrow, Parent and Conservator Plaintiffs Appellees (12-1496, 12-1497) Plaintiffs Appellants (13-1211) v. MICHIGAN DEPARTMENT OF HUMAN SERVICES; REBECCA ROBYDEK Defendants Appellants (12-1497) SHERRYL BROWN; NATALIE MILLER; CYNTHIA SCARSELLA; VERONICA BURKE Defendants Appellants (12-1496) COUNTY OF OAKLAND; DEBORAH CARLEY; ANDREA DEAN; Defendants Appellees (13-1211) ISMAEL AHMED; ERIC OVERALL; DAVID GORCYCA; WALLED LAKE CONSOLIDATED SCHOOL DISTRICT; WILLIAM HAMILTON; Defendants (12-1496, 12-1497, 13-1211) |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0795n.06
ON APPEAL FROM THE
THE UNITED STATES
DISTRICT COURT FOR THE
EASTERN DISTRICT OF
MICHIGAN
Before: MOORE and STRANCH, Circuit Judges; and HOOD, District Judge.*
JOSEPH M. HOOD, District Judge. Plaintiffs Thal Flam Wendrow, Julian Wendrow, and their minor children, AW and IW, brought a civil rights complaint alleging various constitutional and state tort claims against several governmental entities and government employees following the dismissal of charges against Thal and Julian. Those charges stemmed from Julian's alleged sexual abuse of AW, who is unable to meaningfully communicate in any conventional manner as a consequence of her severe autism. This matter is before the Court on three consolidated appeals. These include the interlocutory appeals of first, Defendants Michigan Department of Human Services and Rebecca Robydek, who were involved in the investigation of AW's alleged sexual abuse, and second, Defendants Sheryl Brown, Natalie Miller, Cynthia Scarsella, and Veronica Burke, educators at AW's school who were also involved in the investigation of sexual abuse. These Defendants appeal the district court's denial of governmental and qualified immunity on summary judgment. Their interlocutory appeals were consolidated with the Plaintiffs' appeal of the district court's final order dismissing the claims against Defendants Oakland County, Deborah Carley, and Andrea Dean on absolute and qualified-immunity grounds for their actions in their respective prosecutorial roles. The district court certified as final its judgment as to the prosecutors, pursuant to Federal Rule of Civil Procedure 54(b). For the reasons that follow, we affirm in part, and reverse in part, the district court's judgment.
Thal and Julian Wendrow allege that their children were improperly removed from their home and that they were maliciously prosecuted following statements allegedly made by AW through a technique called "facilitated communication" ("FC"), in which AW reported sexual abuse by her father. During the course of the investigation and prosecution, Defendants' actions resulted in a number of alleged wrongs to AW and IW as well, including the detention and interrogation of IW and a gynecological exam of AW, both without a court order or notice to or approval of a parent or the minors' court-appointed guardian. The alleged wrongs occurred over the course of an investigation and prosecution that spanned several months, and they cover a gamut of activity with respect to each claim and each Plaintiff.
AW is autistic and almost entirely nonverbal. She began using FC when she enrolled in the sixth grade in the Walled Lake Consolidated School District ("WLCSD"). Although no one else in the district used FC, the Wendrows were hopeful that AW would be able to communicate using this technique.
FC was developed in the 1970s to allow individuals with certain physical or mental impairments, such as cerebral palsy, to communicate by typing. With FC, a facilitator holds or supports the individual's hand or arm to allow that person to use a keyboard, or to point at pictures, words or letters. The technique has since been widely criticized because research has repeatedly demonstrated that the facilitators, rather than the disabled individuals, have consciously or subconsciously been the authors of the communications. Sandra McClennan, Ph.D., a proponent of the use of FC and the professional who trained AW, her parents, and her facilitators, confirmed that [R. 201-4 at 3889 90.] As a result of facilitator influence, whether subconscious or conscious, FC has caused numerous instances of false allegations of sexual abuse. In fact, the American Academy of Child & Adolescent Psychiatry, the American Psychological Association, and the American Academy of Pediatrics have specifically warned against the use of FC to confirm or deny allegations of physical or sexual abuse.
Prior to sixth grade, an assessment revealed that AW's cognitive ability was lower than her age would suggest, and there is no evidence that she had learned to read at that time. However, AW used FC during sixth, seventh, and eighth grades and suddenly appeared to be performing at grade level, which encouraged the Wendrows. Soon after entering sixth grade, AW was placed in mainstream classes and was purportedly typing words and sentences and completing grade-level work. More likely, according to professional studies and based on a subsequent assessment finding that AW had the communication skills of a three-year old, her facilitators were consciously or subconsciously authoring her communications.
In September 2007, AW began high school using three new facilitators: Defendant Natalie Miller, AW's new teacher; Defendant Cindy Scarsella, AW's paraprofessional for her morning classes; and another paraprofessional, not named as a party, for her afternoon classes. Defendant Veronica Burke, the School District's Special Services Coordinator, arranged for Miller and Scarsella's training. It is undisputed that Miller and Scarsella received less training than AW's facilitators in middle school, and they testified that they were facilitating AW's statements in a manner that was inconsistent with their training. After starting high school, AW's statements were less coherent than in prior years.
On November 27, 2007, several months after Scarsella and Miller began working with her, AW allegedly typed, with Scarsella facilitating, that her father sexually abused her. Scarsella notified Miller, who immediately sat down with AW and facilitated similar statements. After conferring with Defendant Sheryl Brown, the Director of Special Services at WLCSD, Miller reported the allegations to the Children's Protective Services program of the Michigan Department of Human Services ("DHS").
Once the initial report was made, DHS, the West Bloomfield Police Department, and the Oakland County Prosecutors Office all became involved in an investigation. AW and her brother, IW, were removed from their home and placed in the home of their grandmother, and later with a local Rabbi. AW was interviewed about her allegations at the CARE House, an Oakland County program that specializes in forensic interviews of child victims of sexual abuse.
Prior to AW's interview at the CARE House, AW's family members made numerous attempts to speak with Defendant Rebecca Robydek, the social worker assigned to AW's case, about the proper FC protocols for authenticating these allegations. These protocols included using a facilitator who was unaware of the allegations or using a facilitator who could not hear the questions being asked to assure that AW was authoring her own statements. Robydek, who did not have any training regarding children with disabilities, did not return any of the family members' phone calls, look into the use of naïve facilitators, or investigate whether authentication protocols were being used.
Dr. McClennan and the family members also tried to reach out to Dr. Burke and others involved in the investigation to educate them about the proper protocols for verification of sexual-abuse allegations. Dr. McClennan tried to contact the CARE House in advance of the victiminterview to offer her services to assist with AW's communication needs and to assist with the investigators' understanding of FC. Later, Dr. McClennan also spoke with AW's court-appointed guardian ad litem and again emphasized the importance of using appropriate protocols. However, a naïve facilitator was never contacted. Despite numerous admonitions, Miller and Scarsella were the only two facilitators used throughout the investigation.
AW was interviewed at the CARE House on November 29, 2007. AW's purported statement, through Scarsella, was that her father had raped her since the age of six and that her mother knew but did nothing. AW also purportedly accused her brother, IW, of participating in the abuse. Robydek, Burke, Scarsella, and representatives from law enforcement agencies were present at the interview. Contrary to Michigan's Forensic Interviewing Protocol, which Robydek and others were required to follow, the interview neither involved the professional who had the most contact with the child or the development of her communication system (Dr. McClennan) nor an independent specialist who could evaluate AW's needs.
Plaintiffs contend that certain events and factual errors in AW's statement during the interview should have raised the interviewers' suspicions that AW was not the author of her statements. AW indicated, using a yes/no sticker on the keyboard, that she could help set up the computer and would do so, but it became evident that she was not going to follow through, even though she did not exhibit difficulty using her fingers and hands. Plaintiffs contend that this should have provided...
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