United States District Court, District of Columbia
Decided July 26, 2013.
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For CARLA DOE, EMMA DOE, Individually, and as Parents and Guardians of their minor children ANN DOE and OLIVER DOE, Plaintiffs: John M. Clifford, LEAD ATTORNEY, CLIFFORD & GARDE, Washington,, DC; Stephanie J. Bryant, LEAD ATTORNEY, CLIFFORD & GARDE, LLP, Washington, DC.
For ROBERT DOE, Plaintiff: John M. Clifford, LEAD ATTORNEY, CLIFFORD & GARDE, Washington,, DC; Stephanie J. Bryant, LEAD ATTORNEY, CLIFFORD & GARDE, LLP, Washington, DC; Mick G. Harrison, PRO HAC VICE, The Caldwell Center, Bloomington, IN.
For DISTRICT OF COLUMBIA, BRENDA DONALD WALKER, SARAH MAXWELL, SANDRA JACKSON, HEATHER STOWE, TERRI THOMPSON MALLET, REBEKAH PHILIPPART, DAPHNE KING, Defendants: Kerslyn D. Featherstone, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, Washington, DC; Brant Wood Martin, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Civil Division, Washington, DC; Patricia Ann Oxendine, OFFICE OF THE ATTORNEY GENERAL, Civil Litigation Division, Washington, DC.
For ADRIAN FENTY, Mayor, Defendant: Kerslyn D. Featherstone, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, Washington, DC; Brant Wood Martin, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Civil Division, Washington, DC.
Thomas F. Hogan, UNITED STATES DISTRICT JUDGE.
This case involves the one-day removal of two young children from an abusive home by an agency specifically tasked with protecting abused children. This removal is the locus of Plaintiffs' myriad constitutional and common law claims and the following motions currently pending before this Court: Defendants' Motion for Judgment on the Pleadings and Motion for Summary Judgment (collectively, " Defendants' Motions for Judgment" or " Defs.' Mots. for J." ) [Docket No. 186], Defendants' Motion to Strike Portions of the Declaration of Delores Williams [Docket No. 201], Defendants' Motion to Strike Plaintiffs' Supplemental Memorandum in Response to Questions Raised in Oral Argument [Docket No. 206] and Plaintiffs' Motion for Summary Judgment [Docket No. 182].
After considering the parties' arguments, submissions, and the entire record herein, the Court finds that, for the reasons below, Defendants' Motion for Judgment on the Pleadings and Motion for Summary Judgment are granted, Plaintiffs' Motion for Summary Judgment is denied, and Defendants' Motion to Strike Portions of the Declaration of Delores Williams and Motion to Strike Plaintiffs' Supplemental Memorandum in Response to Questions Raised in Oral Argument are denied as moot.
A. Factual Background
Plaintiffs Robert and Carla Doe (collectively, " the Does" ), individually and as parents and guardians of their minor children, brought this suit against Defendants District of Columbia, former Mayor Fenty, and individually named employees and former employees of the District of Columbia Child and Family Services Agency (" CFSA" ): Brenda Donald, Sarah Maxwell, Sandra Jackson, Heather Stowe, Terri Thompson Mallet, Rebekah Philippart, and Daphne King. The Does' claims arise out of their interactions with CFSA and the agency's removal of their adopted children from their home. These interactions are described in detail below.
The Does are the adoptive parents of Ann and Oliver Doe and have one biological child, Emma Doe. In 2001, Robert and Carla adopted Wayne and Sara Doe (collectively, " Twins" ) after serving as their foster parents. Pls.' Statement of Material Facts as to Which There is No Genuine Issue ¶ 1 [Docket No. 182-2].  A District of Columbia contractor, Board of Child Care (" BCC" ), handled the adoption. See Dep. of Carla Doe at 36:8-16 [Docket No. 191]. Prior to adopting the Twins, Carla Doe knew several unfortunate details about the Twins' lives from " birth to about
five years of age." See id. at 57:18. For example, she knew that the Twins did not live in a stable home, were hungry and homeless for some time, did not receive appropriate medical care, had a drug-abusing mother, had been in weekly therapy " for years," and were put by their mother in " inappropriate situations, unsafe and unhealthy environments for children," including " drug environments." Id. at 57:5-59:3, 53:8-12. She also knew that at the Twins' previous foster home (" the Daileys" ), their birth mother acted inappropriately with the Twins during visits. Id. at 49:21-50:2.
When the Twins moved into the Doe home, they began to sexually abuse both Ann and Oliver Doe. Ann stated that the abuse began when she was three. See Dep. of Ann Doe [Docket No. 191-1] at 7:22-8:18. According to Oliver, the abuse began about a month after the Twins arrived and only ended when the Twins left the house. See Dep. of Oliver Doe [Docket No. 191-2] at 25:1-12. The Does did not learn of the abuse until Sara told Carla Doe that she had inappropriately touched Oliver at some point a few days before September 27, 2004. See Dep. of Carla Doe at 86:20-22 [Docket No. 191]; Letter Dated Sept. 27, 2004 at 3 [Docket No. 188-2]. 
On September 27, 2004, the Does sent a letter to CFSA Director, Brenda Donald, and Adoption Services Program Manager, Sharon Knight, informing CFSA that the Twins had been abusing Ann and Oliver and requesting support services. See Letter Dated Sept. 27, 2004. The letter stated that Sara was still residing in the Doe home at the time, though at some point she moved out of the home to live with her maternal grandmother. See id. at 3. Wayne had already been moved out of the home in August or September into a therapeutic respite home with a provider named Deborah Bobbitt to deal with his anger and other issues. See id.; Dep. of Robert Doe at 88:9-89:16 [Docket No. 191-4].
Robert Doe met with several CFSA representatives on October 1, 2004, including Defendant Sandra Jackson, the CFSA Administrator of Permanency and Family Resources Administration, Dr. Tracey Campfield, a CFSA psychologist in the Office of Clinical Practice, and Sharon Knight, the Program Manager for Adoption Services. Id. at 102:18-104:4. Also present in the meeting were two therapists from Adoption Attachment Partners who provided therapy for the Doe children and family. See id.
Four days later, on October 5, 2004, CFSA received a follow-up letter from Robert Doe. See Letter Dated Oct. 4, 2004 [Docket No. 191-7]. That letter stated that the Does could not afford to keep Wayne in his out-of-home placement and Sara's maternal grandmother could not house her much longer. Id.
On October 6, 2004, Dr. Campfield called the CFSA hotline to officially report the abuse in the Doe home. See CFSA Referral Report [Docket No. 191-8] at 2. Around October 7, 2004, CFSA discussed with Robert Doe their plan for services for the Does, including voluntary placement of Wayne and Sara in therapeutic foster care, as well as CFSA's investigation. See Jackson Timeline  at 2 [Docket No. 191-5];
Dep. of Robert Doe at 112:2-16 [Docket No. 191-4]; Letter Dated Oct. 14, 2004 [Docket No. 191-11]. CFSA agreed to pay for therapeutic foster care but did not agree to provide transportation and payment for Wayne's therapy with the specific provider he was then seeing because the provider was not an approved service provider. See Letter Dated Oct. 14, 2004; Dep. of Sandra Jackson at 68:8-13 [Docket No. 191-6]. According to CFSA, post-adoption services support was typically available only within the first six months or a year following adoption. See Dep. of Brenda Donald at 35:8-18 [Docket No. 191-12].
On October 7, 2004, CFSA Social Worker Delores Williams began her investigation of the Doe home and spoke with Robert, Carla, Ann, and Oliver, following the official hotline report. See CFSA Referral Report at 2. On October 8, 2004, Williams participated in a forensic interview with Ann and Oscar at Safe Shores, the District of Columbia Child Advocacy Center, during which Ann and Oliver stated they were both abused by Wayne and Sara, and that Oliver participated in victimizing his younger sister. See id. at 12.
Based on her two days of investigation, Williams reported that there were " one or more signs of present danger" to Ann and Oliver Doe and that their risk level was " moderate." Id. at 7. However, she did not assess them to be in " immediate danger" because Wayne and Sara were then living outside the home, the Does had installed an alarm system on Ann and Oliver's doors, and the Does had increased supervision of Ann and Oliver. See id.
On October 14, 2004, CFSA received another letter from the Does regarding CFSA's offers of assistance. The letter recalled CFSA's offer to place Sara and Wayne in therapeutic foster care and raised several concerns about this offer. See Letter Dated Oct. 14, 2004 at 2. The Does requested the agency provide additional services to the Doe family, reminding CFSA that it maintained obligations under the LaShawn decree and that it bore responsibility for failing to fully investigate the history of abuse the Twins suffered prior to adoption. See id. at 2. The Does proposed that CFSA pay for Sara to attend the Phillips School, a private school that the Does selected, as well as therapy; pay for Wayne to continue to stay with Ms. Bobbit; pay for both Twins' transportation; and pay for family therapy. See id.
On October 19, 2004, CFSA called Mr. Doe and informed him that they had safety concerns regarding Ann, Oliver, Sara and Wayne and that he needed to cooperate in placing the children into voluntary care pending further investigation. See Dep. of Sandra Jackson at 16:11-16. Mr. Doe agreed to call CFSA back. See Dep. of Robert Doe at 136:6-15. The Does' then attorney, Harvey Schweitzer, called CFSA back and proposed alternative plans for Ann and Oliver. See Jackson Timeline at 3. Schweitzer also informed Defendant Mallet that CFSA needed a court order to remove the children. See Aff. of Harvey Schweitzer ¶ 10 [Docket No. 188-8].
On October 20, 2004, Defendant Brenda Donald, Director of CFSA, determined that Ann, Oliver, and Sara were in immediate danger and needed to be removed from the Doe home. See Dep. of Brenda Donald at 60:11-61:10 [Docket No. 191-12]. The following concerns held by the CFSA team motivated this decision:
o The Does' " failure to protect" their children during the four or more years the children abused each other in the Doe home. As a result, CFSA was also concerned that the Does
would be unable to properly protect Ann and Oliver even with the safety plan. See Dep. of Sandra Jackson at 23:2-3; Dep. of Brenda Donald at 43:1-11; Dep. of Michele Jones-Brigman at 56:4-19 [Docket No. 191-9]; CFSA Referral Form at 12 [Docket No. 191-8].
o The inability of the Does' safety plan to adequately protect the younger children. Dep. of Brenda Donald at 60:21-61:10. Specifically, CFSA was concerned that the plan allowed for the possibility that Ann and Oliver would come back into contact with Sara during unsupervised visits at the grandmother's house. See id. at 43:1-44:2.
o CFSA's inability to enforce the plan and ensure that it effectively protected the children. See Dep. of Michele Jones-Brigman at 56:4-15.
o The possibility that Sara or Wayne may have to return to live in the Doe home given the financial and practical constraints the Does faced in keeping the Twins outside the home. See Dep. of Sandra Jackson at 32:20-33:19; Letter Dated Oct. 4, 2004 [Docket No. 191-7].
o The uncertainty regarding what the Does " knew or didn't know" regarding the abuse, the extent of the Does' involvement in the abuse, and the necessity to separate the children to gather information about this matter. See Dep. of Michele Jones-Brigman at 54:5-55:9.
CFSA then spoke with Robert Doe, and the Does agreed that CFSA social workers, rather than police, would remove Ann, Oliver, and Sara for temporary placement. Dep. of Carla Doe at 170:2-171:22 [Docket No. 191]; Dep. of Robert Doe at 155:18-22 [Docket No. 191-4].
On the evening of October 20, 2004, Defendants King and Philippart, CFSA social workers, were assigned to pick up Ann and Oliver. Dep. of Rebekah Philippart at 12:7-13:3 [Docket No. 191-13]. Neither social worker had been involved in the case previously. Both were solely assigned to transport Ann and Oliver and notify the Does of a court hearing the next day. Id. at 12:7-14, 15:12-19. Defendants King and Philippart went to the Doe home, picked up the children, and provided notice of a District of Columbia Superior Court Family Court hearing scheduled for the next day. See Dep. of Robert Doe at 165:3-9.
Ann and Oliver were taken to a hospital to receive a physical exam. See Dep. of Oliver Doe [Docket No. 191-2] at 16:13-17:16; Dep. of Ann Doe at 13:15-14:7; Dep. of Rebekah Philippart [Docket No. 191-13] at 22:11-16. Following the examination, Ann was taken to her maternal grandmother's home, a licensed foster home, and Sara and Oliver were taken to temporary foster homes. See Dep. of Ann Doe at 15:14-17; Dep. of Oliver Doe at 17:7-12.
On October 21, 2004, the District decided to " no paper" the neglect charges against Robert and Carla Doe. See Dep. of Carla Doe [Docket No. 191] at 183:13-184:7. Ann and Oliver returned home,  and the Does agreed to a voluntary placement with CFSA for Sara. See Dep. of Robert Doe at 171:15-21. Sara and Wayne were charged with child abuse and taken into custody. See Defs.' Resp. to Pls.' Statement of Material Facts as to Which there is No Genuine Issue. [Docket No. 194] at 43. The Twins' were placed
on probation and in therapeutic foster homes. See id. From roughly November 2005 to April 2007, the Twins were under the care of the Department of Youth Rehabilitation Services. See id. at 45.
Ultimately, in May 2007, Robert and Carla Doe relinquished parental rights to the Twins because, according to Carla Doe, they could not " safely have them in our home" and did not have " any money for any care of any kind." Dep. of Carla Doe at 216:6-15; see also Relinquishment of Parental Rights Forms [Docket No. 189-15].
B. Procedural History
On December 14, 2007, the Does filed a 24-count amended complaint against the defendants, in which they alleged violations of District of Columbia law and the U.S. Constitution, pursuant to 42 U.S.C. § 1983. On March 7, 2008, this Court narrowed the claims against the Defendants, dismissing seven counts entirely, parts of four counts, and one plaintiff, Emma Doe. See Order on Defs.' Mot. to Dismiss [Docket No. 37] at 1. The following claims survived:
o Count II, III, and VII: Procedural Due Process Under the Fifth Amendment Alleging Defendants Threatened to Remove and Removed Ann, Oliver, and Sara Doe from their Homes
o Count IV: First Amendment Constitutional Violation Against Defendants Walker, Mallet, Jackson, Stowe and the District for Alleged Retaliation After Robert and Carla Doe Petitioned Defendant District for Assistance
o Count V: First Amendment Constitutional Violation Against Defendants Walker, Mallet, Jackson, Stowe and the District for Alleged Retaliation After Robert and Carla Doe Raised Concerns Regarding CFSA's Failure to Properly Assess the Twins Prior to their Adoption, and For the Need for Comprehensive Post-Adoption Services and Support
o Count VI: Fourth Amendment Constitutional Violation Against All Defendants for Allegedly Threatening to Remove and Then Removing Ann, Oliver, and Sara Doe from their Homes
o Count X: First Amendment Constitutional Violation Against All Defendants for Allegedly Threatening to Remove and then Removing Ann, Oliver, and Sara Doe from their Homes
o Count XIII: Assault Against All Defendants as to Ann and Oliver Doe
o Count XIV: Battery Against All Defendants as to Ann and Oliver Doe
o Count XV: Intentional Infliction of Emotional Distress Against All Defendants ...