United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE
matter is before the Court on motions to dismiss filed by:
Christina Johnson-Gunn, M.S., L.M.H.P. (filing 217);
Children's Hospital and Medical Center (Children's);
Suzanne Haney, M.D.; Martin Harrington, M.D.; Michael Vance;
Kara Beals; and Sarita Ruma (collectively, the
"Children's Defendants") (filing 249);
Alegent Creighton Clinic and Shashi Bhatia, M.B.B.S. (the
"Alegent Defendants") (filing 254).
Court will grant Johnson-Gunn's motion to dismiss, and
the Alegent Defendants' motion to dismiss. The Court will
substantially grant the Children's Defendants' motion
to dismiss, with the exception of a single claim: a 42
U.S.C. § 1983 claim asserted against Haney.
plaintiff, Catherine Yang Wang Anderson (Wang Anderson) is
the mother of two girls, X.C.W. and Y.C.W. Filing 154 at
2. Wang Anderson's husband, Bo Wang (Wang) is their
father. Filing 154 at 2. And the movants all
provided health care services to X.C.W. or Y.C.W.
Johnson-Gunn is a licensed mental health practitioner.
Filing 154 at 17. Children's is an Omaha health
care organization that treated X.C.W., most pertinently in
its program for treatment of eating disorders. Filing 154
at 19, 54. Harrington is a psychiatrist and directed
that program. Filing 154 at 14. Haney is a physician
who was, according to Wang Anderson, employed by Douglas
County or Project Harmony. Filing 154 at 8. Vance is a
psychologist employed by Children's, and Beals is a
licensed independent mental health practitioner also employed
by Children's. Filing 154 at 15. Ruma is a
licensed independent mental health practitioner who also
seems to have been associated with Creighton. Filing 154
at 16; see filing 154 at 106. Finally,
Alegent was a regional health care network that treated
Y.C.W., and Bhatia the psychiatrist who provided that
treatment. Filing 154 at 15, 20.
generally, Wang Anderson alleges that X.C.W. was unlawfully
made a ward of the State of Nebraska and held by the State
against her will. Filing 154 at 2. But it was Y.C.W.
who first drew the attention of authorities. According to
Wang Anderson, Y.C.W. had an "inappropriate"
personal relationship with a teacher at her high school
because Y.C.W. was permitted and encouraged to confide in him
about personal problems. Filing 154 at 24-28. Y.C.W.
told him she had sexual identity issues. Filing 154 at
35. Wang Anderson blames Y.C.W.'s friendship with
her teacher for a "breakdown" in her own
relationship with Y.C.W., who reported to school officials on
October 8, 2013 that Wang Anderson had threatened her.
Filing 154 at 28.
on Y.C.W.'s report that she didn't feel safe going
home, sheriff's officers removed Y.C.W. from Wang
Anderson's residence and took her to Project Harmony for
a temporary foster placement. Filing 154 at 33. One
of the sheriff's deputies observed that when Wang
Anderson answered the door, she was wearing a rubber glove,
and suspected that Wang Anderson might be mentally ill.
Filing 154 at 29-31. Investigators from the Nebraska
Department of Health and Human Services (DHHS) went to the
home that evening, and reported hazardous conditions.
Filing 154 at 35. So, after X.C.W. went to school
the next day, she was also placed in the temporary custody of
DHHS. Filing 154 at 36. X.C.W. and Y.C.W. were
placed with the same foster parent, and both girls were
evaluated at Project Harmony. Filing 154 at 34, 37,
43. Wang Anderson alleges that Haney was among those
who, at Project Harmony, were negligent in evaluating and
treating X.C.W. and Y.C.W. Filing 154 at 43.
juvenile proceeding was initiated in the Separate Juvenile
Court of Douglas County, Nebraska. Filing 154 at 44.
The petition alleged-Wang Anderson says wrongly-that X.C.W.
and Y.C.W. had been subjected to inappropriate discipline,
not provided with safe housing, deprived of proper parental
care and support, and that Wang Anderson had been seen acting
in a manner consistent with untreated mental health needs.
Filing 154 at 44-45. An ex parte juvenile court
order placed the girls in the temporary custody of DHHS, then
after a hearing, the juvenile court continued DHHS's
temporary custody. Filing 154 at 45-46.
Anderson claims that both girls began to show signs of
"mental, emotional and physical distress" that went
unnoted and untreated. Filing 154 at 48-49. Both
girls were diagnosed with mental health disorders; Wang
Anderson claims the diagnoses were inaccurate. Filing 154
at 52. She also alleges, as a basis for liability, that
the girls' mental health providers did not encourage them
to communicate with her, and that both girls were told they
had a right to refuse contact with her. Filing 154 at
was admitted to a program at Children's for treatment of
eating disorders. Filing 154 at 54. Wang Anderson
alleges that Harrington and Beals assessed X.C.W. on intake
and departed from the standard of care when doing so.
Filing 154 at 54. X.C.W. was partially hospitalized
as part of the eating disorders program-her time was split
between the hospital and her foster home. Filing 154 at
54-55. Wang Anderson claims that X.C.W.'s
participation in the Children's eating disorders program
actually worsened her condition, and that she should have
been treated without the partial hospitalization. Filing
154 at 55, 59. She also claims that Children's,
Harrington, and Beals violated her constitutional rights as a
parent by admitting X.C.W. without her permission. Filing
154 at 59, 61. And she alleges that X.C.W. was
prescribed medications without parental consent. Filing
154 at 66.
suggestion of the girls' therapists at that time, DHHS
recommended to the juvenile court that all parental
visitation be therapeutic, and the juvenile court agreed.
Filing 154 at 57. Wang Anderson alleges that
Y.C.W.'s therapists approved "certain ways of life,
behaviors or actions that were inappropriate, morally
corruptive, harmful and detrimental. . . ." Filing
154 at 58. Alegent and Bhatia, she says, did not meet
the standard of care in treating Y.C.W., which
"interfered with the familial liberty interests of Wang
Anderson and Y.C.W." Filing 154 at 66-67. She
also claims that her right to visitation with X.C.W. was
interfered with by Children's, Harrington, Vance, and
Beals, damaging the parent-child relationship. Filing 154
at 63-64. That visitation, she says, "was essential
to X.C.W.'s reunification with her parents," and
"family therapy was an 'integral' part of
X.C.W.'s recovery from her eating disorder and the
standard of care for such a disorder." Filing 154 at
January 28, 2014, the Douglas County Attorney petitioned the
juvenile court to terminate Wang and Wang Anderson's
parental rights. Filing 154 at 75. The juvenile
court dismissed the petitions, but the girls were finally
adjudicated as being juveniles within the meaning of Neb.
Rev. Stat. § 43-247(3). Filing 154 at 81.
And visitation was ordered. Filing 154 at 82.
X.C.W. had been held out of school during her eating disorder
program. Filing 154 at 60. Her condition had
deteriorated and more intensive treatment was recommended.
Filing 154 at 68. She was placed at the Laureate
Psychiatric Clinic and Hospital in Tulsa, Oklahoma.
Filing 154 at 73. Family therapy was not provided at
Laureate, allegedly because Harrington and Beals failed to
arrange it or inform Laureate of its importance. Filing
154 at 75. Harrington and Beals were also among those
whom Wang Anderson alleges "failed to provide Laureate
Psychiatric staff with accurate or sufficient information
regarding X.C.W.'s parents." Filing 154 at
X.C.W. was discharged from Laureate and put into a new foster
placement, and she continued treatment for her eating
disorder at Children's Hospital in Omaha. Filing 154
at 83-84, 86. Sometimes, X.C.W.'s foster parents
were unable to take her to Children's, so transportation
was provided by Camelot Transportation. Filing 154 at
89. She rode with other passengers, some adult men.
Filing 154 at 89. According to Wang Anderson, X.C.W.
was "lured, sexually abused and sexually exploited"
by another passenger. Filing 154 at 90. Or, to be
more specific, a juvenile court filing indicates that the two
had exchanged telephone numbers and texted one another, and
eventually X.C.W. sent him a nude picture of herself and
expressed romantic feelings toward him. Filing 154 at
around the same time,  the juvenile court entered an order
restricting Wang Anderson's and Wang's contact with
school officials. Filing 154 at 92. Wang Anderson
alleges that except for the failure of various officials and
care providers, including Beals, "to arrange necessary
services in a timely manner and to effectively communicate
information regarding the children to Wang Anderson and Dr.
Wang, this restriction on Wang Anderson's communication
would not have been imposed by the [juvenile court]."
Filing 154 at 93.
anorexia relapsed, and she was again hospitalized. Filing
154 at 91-92. In November 2014, she was placed at Remuda
Ranch, a treatment facility in Arizona. Filing 154 at
94. Wang Anderson alleges that while at Remuda Ranch-and
generally throughout X.C.W.'s mental health
treatment-X.C.W.'s care providers didn't
appropriately include X.C.W.'s family in her therapy.
Filing 154 at 96. Harrington and Beals are among
those singled out for failing to implement family therapy.
Filing 154 at 81, 86. Eventually, visitation was cut
off, allegedly in retaliation for Wang Anderson's efforts
to contact X.C.W. and participate in her treatment.
Filing 154 at 99. Wang Anderson complains that
Johnson-Gunn, Harrington, Beals, Ruma, and Bhatia all
"failed to encourage X.C.W. or Y.C.W. to engage in
visitation or other contact with Wang Anderson."
Filing 154 at 88. And she says that the ongoing
failure to provide family therapy, attributable to
Children's, Harrington, Beals, and Ruma among others, was
contrary to the standard of care and a violation of
X.C.W.'s constitutional rights. Filing 154 at 56,
discharge from Remuda Ranch, X.C.W. was returned to her
previous foster placement. Filing 154 at 102. She
was not, over Wang Anderson's objection, placed with
relatives, despite a rule Wang Anderson says should have
preferred such a placement. Filing 154 at 100. Then,
X.C.W. was permitted to attend a Project Everlast meeting at
which, Wang Anderson alleges, X.C.W. was again "lured
and sexually assaulted or sexually exploited by an unknown
adult male during and after the lunch hour." Filing
154 at 108-09. Wang Anderson says the incident
wasn't discovered for a week, and alleges that X.C.W. was
injured. But no treatment was provided, and no law
enforcement investigation was initiated. Filing 154 at
109-10. Harrington was among those that Wang Anderson
blames for failing "to have an appropriate safety plan
in place or communicate any such plan to Project Everlast
when X.C.W. attended the March 14, 2015 meeting."
Filing 154 at 109.
period of time, "family therapy" was arranged, by
Harrington among others, that included X.C.W.'s foster
parent, rather than Wang Anderson or Wang, as the family
member. Filing 154 at 97. This was, according to
Wang Anderson, contrary to the standard of care and
unconstitutional. Filing 154 at 97. At around the
same time, several defendants, including Children's,
Harrington, Alegent, and Bhatia, allegedly refused to provide
health information about X.C.W. and Y.C.W. to Wang Anderson,
despite being asked for it. Filing 154 at 104.
in June 2015, Wang Anderson was permitted to participate in
family therapy with Johnson-Gunn. Filing 154 at 113.
But Wang Anderson was excluded again after she "tried to
address the pertinent and urgent topic of sex trafficking
with X.C.W." Filing 154 at 113. Specifically,
Wang Anderson alleges that she brought up "the
seriousness and life-threatening consequences of being
sexually abused and sexually trafficked with X.C.W. during a
family therapy session, to try to educate and protect
her." Filing 154 at 119. But Johnson-Gunn asked
Wang Anderson to leave, Wang Anderson alleges, instead of
"assist[ing] Wang Anderson in discussing this important
and germane topic with X.C.W." Filing 154 at
119. Then, Wang Anderson alleges, Johnson-Gunn
"departed from the therapeutic standard of care"
by, allegedly, making "suggestions to X.C.W. regarding
how to safely or legally engage in prostitution, shortly
after X.C.W. had been sold for money." Filing 154 at
January 2016, several officials and care providers-including
Harrington and Ruma-allegedly "agreed and decided to
terminate effective ongoing health care provided by
[Johnson-Gunn] for X.C.W. and ongoing services for the
family." Filing 154 at 120. Despite having
accused Johnson-Gunn of departing from the standard of care
by encouraging sex trafficking, Wang Anderson also
claims that removing Johnson-Gunn as the family therapist
harmed X.C.W., falling below the standard of care and
violating her constitutional rights. Filing 154 at
X.C.W. was allowed by her foster parents-who lived in Blair,
Nebraska-to work part-time in a Blair restaurant. Filing
154 at 115-16. Sometimes she walked to and from work.
Filing 154 at 115. Wang Anderson complained to
various authorities about instances in which X.C.W. was seen
"scantily dressed," and she alleges that various
defendants ignored "the attire X.C.W. was permitted . .
. to wear" by her foster parents. Filing 154 at
115-16. And according to Wang Anderson, X.C.W. arranged
to be picked up by a man who, again, "sexually abused
and exploited" her. Filing 154 at 115-16.
Harrington, among others, allegedly "failed to provide
X.C.W. with timely and ...