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Wang Anderson v. State

United States District Court, D. Nebraska

September 12, 2018

THE STATE OF NEBRASKA, et al., Defendants.


          John M. Gerrard United States District Judge.

         This matter is before the Court on the motion to dismiss and motion to strike (filing 221) filed by Douglas County, Nebraska and Chad Miller, Mark Gentile, Brenda Wheeler, and Amy Schuchman (collectively, the "County Defendants"). The Court will grant the motion to dismiss in part and deny it in part, and will deny the motion to strike.

         I. BACKGROUND

         The 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. X.C.W. was a minor when this case was filed, and Wang Anderson is suing both in her own capacity and as "next friend" of X.C.W. Filing 154 at 2. Douglas County is a political subdivision of the State of Nebraska. Filing 154 at 3. Gentile was a lieutenant with the Douglas County Sheriff's Office, and Wheeler and Miller were sheriff's office deputies. Filing 154 at 6-7. Miller was also the school resource officer at Millard West High School. Filing 154 at 7. Schuchman was a deputy Douglas County Attorney. Filing 154 at 19.

         Very 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, Millard West, because Y.C.W. was permitted and encouraged to confide in him about personal problems. Filing 154 at 24-28. According to the teacher, 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. Shortly after that, Miller spoke to Y.C.W. about her report. Filing 154 at 28. Miller and another deputy went to Wang Anderson's home and spoke with her, but didn't enter the home. Filing 154 at 28-29. They didn't tell Wang Anderson about Y.C.W.'s reported threat. Filing 154 at 29.

         On the same day, Gentile and another officer went to Wang Anderson's home to make contact with X.C.W., who was home. Filing 154 at 29. Gentile spoke to X.C.W. privately, and according to Wang Anderson, X.C.W. told Gentile that she had heard no threat to Y.C.W., and speculated that Y.C.W. might have made up the report. Filing 154 at 29. Gentile specifically asked X.C.W. whether she felt unsafe with Wang Anderson, and X.C.W. said she didn't. Filing 154 at 29. Wang Anderson alleges that she reported concerns about Y.C.W.'s friendship with her teacher to Gentile, but that Gentile did not investigate those concerns. Filing 154 at 30.

         Gentile asked Wang Anderson to go to Millard West to speak with a guidance counselor and Y.C.W., among others. Filing 154 at 30. At that meeting, Miller told Wang Anderson that Y.C.W. had reported being threatened. Filing 154 at 30. Wang Anderson denied the accusation. Filing 154 at 30. Wang Anderson also communicated her concerns about Y.C.W.'s relationship with her teacher to Miller, who-according to Wang Anderson- also failed to investigate. Filing 154 at 30, 33.

         Based on Y.C.W.'s report that she didn't feel safe going home, Gentile and Miller removed Y.C.W. from Wang Anderson's residence and took her to Project Harmony for a temporary foster placement. Filing 154 at 33. Gentile had also observed that when Wang Anderson answered the door, she had been 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 Wang Anderson's residence that evening, and reported hazardous conditions. Filing 154 at 35.

         So, after X.C.W. went to school the next day, Wheeler placed X.C.W. in the temporary custody of DHHS. Filing 154 at 36. Wheeler and a DHHS case worker went to Wang Anderson's house, and Wheeler took Y.C.W.'s cell phone for evidentiary purposes. Filing 154 at 35. 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 the evaluations were inadequate, and that no evidence was generated of any injuries-but, if there was such evidence, it was unlawfully concealed by various defendants, including Douglas County and Schuchman. Filing 154 at 43.

         A juvenile proceeding was initiated in the Separate Juvenile Court of Douglas County, Nebraska, by a deputy Douglas County Attorney. 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. Specifically, Wang Anderson asserts that Wheeler and Miller failed to disclose to the juvenile court that X.C.W. did not feel unsafe at home. Filing 154 at 37. 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. Wang Anderson blames Douglas County, in part, for the alleged violation of her right to due process occasioned by the delay in holding a hearing. Filing 154 at 47.

         Wang 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 53.

         X.C.W. was sent to a program for treating eating disorders. Filing 154 at 54. She was partially hospitalized-her time was split between the hospital and her foster home. Filing 154 at 54-55. On the suggestion of the girls' therapists, DHHS recommended to the juvenile court that all parental visitation be therapeutic, and the juvenile court agreed. Filing 154 at 57. But visitation between Wang Anderson and Y.C.W. was suspended. 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.

         On January 28, 2014, the Douglas County Attorney petitioned the juvenile court to terminate Wang and Wang Anderson's parental rights. Filing 154 at 75. Schuchman filed those petitions. Filing 154 at 75. The juvenile court dismissed the termination 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.

         Schuchman filed a notice of appeal from the adjudication, assigning error to the juvenile court's dismissal of the termination allegations. Filing 154 at 87; filing 222-5 at 31-32. The juvenile court later entered a "permanency planning order" that established a permanency objective of reunification, although the order also placed strict limitations on Wang Anderson's contact with the children. Filing 154 at 92. Schuchman also appealed that order, assigning error to the juvenile court's appointment of counsel for Wang without a finding of indigency. Filing 154 at 93; filing 222-7 at 6.

         The Nebraska Court of Appeals eventually affirmed the permanency planning order, holding that the State had waived its argument with respect to appointment of counsel for Wang by not raising it in the trial court. Filing 222-7 at 7-8.[1] The court also affirmed the adjudication order. Filing 222-5 at 42. The court held that it was "clear that the State proved by a preponderance of the evidence" that Wang Anderson had been "subjecting [X.C.W. and Y.C.W.] to dangerous and inappropriate discipline, failing to provide proper parental care and support for [X.C.W. and Y.C.W.], and . . . observed to be acting in a manner consistent with untreated mental health needs." Filing 222-5 at 36. But, the court explained, "parental rights should be terminated only in the absence of any reasonable alternative and as the last resort." Filing 222-5 at 42 (cleaned up). And, the court found, the "point of last resort" had not been reached in the case. Filing 222-5 at 42.

         Meanwhile, 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. Eventually, 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 90.

         X.C.W.'s 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 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. 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.

         After 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.

         Starting in June 2015, Wang Anderson was permitted to participate in family therapy, but she 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 the therapist 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, the therapist "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 119.

         Meanwhile, 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.

         In May 2016, the juvenile court changed the permanency objective for X.C.W. to independent living. Filing 154 at 121. She moved to another foster home, then to an "independent living arrangement," then to a dormitory at the University of Nebraska-Lincoln. Filing 154 at 121. But in December 2016, she was returned to her foster home in Blair. Filing 154 at 123. After that, she was sent to another foster placement, where she remained when this complaint was filed. Filing 154 at 124.

         Wang Anderson asserts several federal and state-law claims against sixty-nine different defendants, on behalf of herself and X.C.W. Filing 154 at 1-2. She claims a number of federal constitutional violations, including violation of their rights to due process and familial association, unlawful seizure, a deliberately indifferent failure to protect, retaliation for constitutionally protected activity, violation of Wang Anderson's First Amendment rights, and discrimination against Wang and Wang Anderson because of their Chinese origin. Filing 154 at 124-30, 137-47. She also claims X.C.W. wasn't provided with accommodations required by § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Filing 154 at 147-48. And, she says, she and X.C.W. were denied statutory rights arising under 42 U.S.C. §§ 621 et seq. & 670 et seq. Filing 154 at 150-57. Finally, she asserts state-law claims including negligence, negligent and intentional infliction of emotional distress, and a civil rights claim pursuant to Neb. Rev. Stat. § 20-148. Filing 154 at 131-37, 148-50.

         Specifically, as to the County Defendants, Wang Anderson asserts:

1. A § 1983 claim premised on 4th and 14th Amendment violations against Wheeler, Miller, and Gentile (filing 154 at 124-26);[2]
2. Policy-or-custom claims (Monell claims) against Douglas County (filing 154 at 126);
3. State-law negligence claims against all defendants (filing 154 at 130);
4. A § 1983 claim based on violation of the "substantive due process rights to family integrity and the parent-child relationship" against all "Individual Defendants" (filing 154 at 137);
5. A § 1983 claim based on deliberate indifference to X.C.W.'s serious health and safety needs against all "Individual Defendants" (filing 154 at 142-43);
6. A § 1983 claim based on "retaliation for protected activity" against Douglas County, Wheeler, Gentile, and Miller (filing 154 at 143);
7. A discrimination claim pursuant to 42 U.S.C. § 2000d against Wheeler and Gentile (filing 154 at 145);
8. Section 20-148 "civil rights" claims against all defendants (filing 154 at 148);
9. Negligent and intentional infliction of emotional distress claims against all defendants (filing 154 at 149);
10. A § 1983 claim based on violation of 42 U.S.C. § 621 et seq. against Douglas County (filing 154 at 150); and
11. A § 1983 claim based on violation of 42 U.S.C. § 670 et seq. against Douglas County (filing 154 at 153).

         The County Defendants move to dismiss all those claims except the Monell claims pursuant to ...

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