United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge
matter is before the Court on the Motion to Dismiss, ECF No.
29, filed by Defendants Nebraska Department of Health &
Human Services (NDHHS), Joan Weldon, Talana Sayre, Brenda
Chase, and Diane Martig (collectively, State Defendants); the
Motion to Dismiss, ECF No. 31, filed by Defendant Project
Harmony; and the Findings and Recommendation, ECF No. 33, of
Magistrate Judge Michael D. Nelson. For the reasons stated
below, Project Harmony's motion to dismiss will be
granted; the State Defendants' motion to dismiss will be
granted in part; and the Findings and Recommendation will
adopted in their entirety.
following facts are those alleged in the Amended Complaint,
ECF No. 25, and assumed true for purposes of the Motion to
is a the biological mother of an adult daughter, and the
adoptive mother of a 19-year-old daughter, identified in the
Complaint as “AA, ” and a six-year-old daughter,
identified as “EA.” Id. ¶ 16, Page
ID 328. Both adoptive daughters were minors during the time
relevant to the conduct alleged in the Complaint. AA was
removed at a young age from her biological parents' home
and has been diagnosed with “Post Traumatic Shock
Disability, ” “Reactive Attachment Disorder,
” “Attention Deficit Hyperactivity Disorder,
” and Schizophrenia. Id. ¶ 17.
the spring of 2015, “medical provider issues”
caused AA to go without her medication for “several
days.” Id. ¶ 18. Page ID 328-29. During
this lapse in her medication, Ayres and several other people
reported that AA's behavior and focus improved.
Id. The Complaint does not state if or when Ayres
resumed AA's medication.
August of 2015, Ayres found AA making homicidal threats
outside the bedroom of EA and a two-year-old foster child,
named in the Amended Complaint as “AF.”
Id. ¶ 19, Page ID 329. Concerned for the
children's safety, Ayres contacted the “Adult &
Child Abuse & Neglect Hotline established by the Division
of Children & Family Services.” Id. ¶
21. On this call, Ayres asked Hotline staff if Child
Protective Services (CPS) would intervene if she brought AA
to a treatment facility and then did not pick her up.
Id. ¶ 22, Page ID 330. The staff informed Ayres
that CPS would charge her with neglect and abandonment if she
failed to pick up AA under the circumstances she described.
The staff also informed Ayres that CPS would remove her other
children if she brought AA home and that “her report
had been ‘accepted' as an intake for investigation
on a dependency case.” Id. ¶ 23. On the
advice of the Hotline's staff, Ayres took AA to Immanuel
Hospital, where she was admitted and placed on antipsychotic
medications. Id. ¶ 24. Soon after taking the
medication, AA “lost touch with her surroundings and
did not know where she was.” Id.
attempted to place her at Bryan Hospital in Lincoln,
Nebraska, but “[t]he Mental Health Board denied her
admission.” Id. ¶ 25, Page ID 331. After
nine days of hospitalization, “Immanuel told Ms. Ayres
she needed to pick up AA.” Id.
was unable to find placement for AA in Nebraska, having been
told that AA was “too ill” for juvenile
facilities and too young for adult facilities. Id.
¶ 27. After leaving Immanuel, AA went to stay with
Ayres's adult daughter in Kansas. Id. ¶ 28,
Page ID 331-32. Two weeks later, Ayres contacted police in
Kansas due to AA's deteriorating mental condition.
Id. ¶ 29, Page ID 332. The police took AA into
custody and placed her at COMCARE Kansas, a hospital facility
for youth with serious emotional disturbances. Id.
COMCARE transferred AA to the Osawatomie State Hospital, in
Osawatomie, Kansas, the next day. Id.
assigned Defendant Sarah Brock, a Child and Family Services
Specialist, to investigate the safety of Ayres's children
on September 28, 2015. Id. ¶ 34, Page ID
333-34. Brock interviewed Ayres's six-year-old daughter,
EA, at her school for approximately ten minutes. Id.
Brock undertook no other investigatory measures.
Id., Page ID 334. Based on this investigation, Brock
concluded that “Ms. Ayres' home was unsuitable for
foster children.” Id. ¶ 35.
Talana Sayre, also a Child and Family Services Specialist
with NDHHS, was assigned to investigate possible physical
abuse of AF, Ayres's two-year-old foster child.
Sayre's conclusions cite only Brock's report of her
interview with AE; they do not mention a site visit CPS staff
made to AF's daycare. Id. ¶ 36. The Amended
Complaint quotes the director of AF's daycare, who
describes the visit by CPS staff as lasting only five
minutes, and who claims the CPS staff “basically rolled
their eyes” when the director informed them that AF
always came to the daycare neatly dressed and free of
bruises. Id. ¶ 37, Page ID 334-35. The Amended
Complaint also states that “Sayre did not talk to or
examine either AF or her infant brother.” Id.
Amended Complaint alleges that Sayre, Brock, and NDHHS
“failed to contact, interview or otherwise investigate
obvious and available collateral sources concerning AA and
AF, ” such as “treating physicians, teachers, and
day care personnel . . . .” Id. ¶ 43,
Page ID 336. The Amended Complaint describes how these
collateral sources would have supported Ayres's fitness
as a parent. See id., Page ID 336-38.
October 8, 2015, Brock informed Ayres that she would be
placed on the “Child Abuse Registry, ” due to
Ayres's neglect of AA in allowing her to “go
‘off her meds.'” Id. ¶ 45, Page
ID 338. On January 11, 2016, “the Agency concluded that its
investigation substantiated the placement of [Ayres] on the
[Child Abuse Registry].” Id. ¶ 47, Page
result of her placement on the Child Abuse Registry, Ayres
was prohibited from fostering children and her
children were removed from her home. She also
lost her job and the opportunity for future employment in
child and family services-her trained field. Id.
¶¶ 48-50, Page ID 339. At some point, the state of
Nebraska removed Ayres's name from the Registry.
Id. ¶ 51.
Amended Complaint gives the following summary:
[N]one of [the] Nebraska state agencies or their employees
completed a thorough and legitimate investigation pursuant to
NDHHS guidelines before deciding to place [Ayres] on the
Registry. State employees Sarah Brock, Talana Sayre, Diane
Martig, Lana Sayres, and Brenda Chase conducted and approved
an inadequate, perfunctory, and non-existent
“investigation” despite the existence of NDHHS
published guidance and requirements. They failed to consider
Ms. Ayres' constitutional rights and their actions
resulted in Ms. Ayres being placed on the Central Registry,
the loss of Ms. Ayres' license to provide foster care,
loss of her foster and adopted children, and loss of her job.
The State of Nebraska and its employees failed to conduct an
adequate, let alone thorough, investigation. The
investigation failed to meet guidelines in place by DHHS for
intake processes and investigation. Most significantly, the
State of Nebraska and its employees should have and were
expected to contact and interview collateral sources who
could provide meaningful and objective information. No. such
contact was made and Jill Ayres' life was devastated by
being placed on the Central Registry. The actions directly
flowing from the State of Nebraska's faulty investigation
as conducted by DHHS employees were: (1) loss of Ms.
Ayres' children; (2) loss of her job; (3) loss of her
profession and livelihood; and (4) loss of her self-esteem
Id. ¶¶ 53-54, Page ID 340.
filed this action in the District Court of Douglas County,
Nebraska, on August 3, 2017. Defendants removed the case to
this Court on September 1, 2017, citing the Court's
federal-question jurisdiction. Ayres filed her Amended
Complaint on January 18, 2018. In the Amended Complaint, the
first claim is captioned “FIRST CLAIM ALL DEFENDANTS
VIOLATED JILL AYRES' WELL-ESTABLISHED CONSTITUTIONAL
RIGHTS.” Id., Page ID 341. The Amended
Complaint goes on to state that “the State of Nebraska,
and its employees, acting in their official capacities,
interfered with and deprived Jill Ayres' Fourteenth
Amendment liberty interest in the companionship, care, and
custody of her daughters.” Id.
headings are not captioned numerically, and whether they are
intended as part of the “First Claim” or new
claims is difficult to discern. The next heading states
“Defendants Violated Jill's Constitutionally
Guaranteed Rights to Substantive Due Process Because the
‘Investigation' Was Not Based on A Reasonable
Suspicion of Child Abuse.” Id., Page ID 342.
Under this heading are four subsections, respectively
captioned, “Defendants Violated Jill's
Constitutionally Guaranteed Liberty Interests Because Its
[sic] Investigation Was Inadequate, Incomplete, and
Incompetent;” “Defendants Violated Ms. Ayres'
Constitutional Rights and Liberty Interests Based on Their
Failure to Interview & Corroborate Witness
Testimony;” “Defendants Violated Ms. Ayres'
Constitutional Rights Prior to Placing Her on the Central
Registry Based on the CPS ‘Staggering' Rates of
Error;” and “Defendants Violated Jill's
Constitutional Rights by Placing Her on The Central Registry
When She Exercised Her Constitutional Right to Determine
AA's Medical Treatment.” Id., Page ID
343-45. The final two section headings simply state
“NDHHS Employees Are Liable Under 42 U.S.C. §1983
In Their Official Capacities” and “Individual
Defendants Are Liable in their Personal Capacities.”
Id., Page ID 346-47.
prays that Defendants “be enjoined from violating her
Constitutional rights” and that she be awarded damages
for (1) pain and suffering; (2) medical expenses caused by
emotional stress; (3) loss of employment; (4) loss of
reputation, (5) loss of her “license to carry on her
profession;” and (6) attorney fees. Id., Page