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Wang Anderson v. State

United States District Court, D. Nebraska

September 27, 2018

CATHERINE YANG WANG ANDERSON, Plaintiff,
v.
THE STATE OF NEBRASKA, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the motion to dismiss (filing 261) filed by the State of Nebraska, the Nebraska Department of Health and Human Services (NDHHS), Courtney Phillips, Douglas Weinberg, Jennifer White, Carla Heathershaw Risko, Camas Steuter, and the Hon. Elizabeth Crnkovich (collectively, the State Defendants). The Court will grant that motion in part and deny it in part.

         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 sued both in her own capacity and as "next friend" of X.C.W. Filing 154 at 2. Phillips was the chief executive officer of the NDHHS, which is the state agency responsible for the State's child protection and welfare programs. Filing 154 at 3, 5. Weinberg was the director of the NDHHS Division of Children and Family Services. Filing 154 at 5. Steuter was the administrator of that division's Eastern area. Filing 154 at 6. White was an NDHHS social worker. Filing 154 at 8. Heathershaw Risko was an NDHHS attorney. Filing 154 at 18-19. And Judge Crnkovich was a judge of the Douglas County Separate Juvenile Court. Filing 154 at 12.

         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 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.

         Based 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 NDHHS, including White, went to Wang Anderson's residence that evening. Filing 154 at 34. According to Wang Anderson, they concluded that it was safe for X.C.W. to remain there. Filing 154 at 34. But then White reported-Wang Anderson says falsely-that "the physical living conditions are hazardous." Filing 154 at 35. So, after X.C.W. went to school the next day, she was also placed in the temporary custody of NDHHS. 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.

         A 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. Judge Crnkovich entered an ex parte juvenile court order placing the girls in the temporary custody of NDHHS, then after a hearing continued NDHHS's temporary custody. Filing 154 at 45-46.

         Wang Anderson alleges that Judge Crnkovich erroneously found that "reasonable efforts were made to prevent removal" of the girls from Wang Anderson's home, when no such efforts had actually been made. Filing 154 at 45. She also alleges that Judge Crnkovich's decision to keep the girls in foster care was unsupported by the evidence. Filing 154 at 46. She alleges that she was denied a formal hearing, despite her right to one. Filing 154 at 47. And she complains about Judge Crnkovich's appointment of a guardian ad litem for her, asserting that "Judge Crnkovich implicitly or expressly determined that Wang Anderson was incapacitated or incompetent by making this appointment" without a hearing or evidence. Filing 154 at 48.

         Wang Anderson claims that while in foster care, 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, and her time was split between the hospital and her foster home. Filing 154 at 54-55.

         At a November 7, 2013 detention hearing, Judge Crnkovich ordered that X.C.W. and Y.C.W. remain in the temporary custody of the NDHHS. Filing 154 at 61. On the suggestion of the girls' therapists, NDHHS-represented by Heathershaw Risko-recommended to the juvenile court that all parental visitation be therapeutic, and Judge Crnkovich agreed. Filing 154 at 57, 61. Heathershaw Risko allegedly represented to the juvenile court that visitation had been supervised, but had been ended early because of "inappropriate behavior" by Wang Anderson." Filing 154 at 61. Wang Anderson denies that. Filing 154 at 61. Wang Anderson also 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. In the meantime, although the juvenile court had ordered therapeutic visitation, Wang Anderson alleges that neither NDHHS nor Heathershaw Risko did anything to arrange such visitation. Filing 154 at 63. And she claims that Heathershaw Risko made a misrepresentation to the juvenile court that resulted in visitation being suspended. Filing 154 at 78-79. Wang Anderson blames the NDHHS and Heathershaw Risko for failing to provide family therapy. Filing 154 at 70. And she alleges that throughout the girls' foster care, the NDHHS permitted their foster parents to interfere with their communication and visitation with Wang Anderson. Filing 154 at 67.

         Hearings were held on the State's termination petitions in March, May, and June 2014, and on June 25 Judge Crnkovich entered an order dismissing the termination petitions, but adjudicating the girls as being juveniles within the meaning of Neb. Rev. Stat. § 43-247(3). Filing 154 at 81. And visitation was ordered. Filing 154 at 71, 82. Wang Anderson, however, alleges that Judge Crnkovich denied her due process by not holding the adjudication hearing within 90 days of the girls' removal from the home. Filing 154 at 66.

         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. Wang Anderson suggested that X.C.W. be fostered with Chinese relatives of hers, but NDHHS refused, and placed her with unrelated foster parents. Filing 154 at 83-84. Wang Anderson claims that these foster parents were unqualified, and that NDHHS should have known that. Filing 154 at 84. She also accuses the State, the NDHHS, Phillips, Weinberg, and Steuter for waiving a regulatory limitation on the number of children that can be placed in a foster home. Filing 154 at 103.

         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.

         At this point, the permanency objective for X.C.W. was still reunification. Filing 154 at 92. But Judge Crnkovich ordered that school records and information should be provided to Wang Anderson and Wang only through the family permanency specialist-essentially, preventing Wang Anderson from communicating with school personnel. Filing 154 at 92. And Judge Crnkovich ordered Wang Anderson to communicate with all the girls' service providers, including the family permanency specialist, only through counsel or her guardian ad litem. Filing 154 at 92. Eventually, Wang Anderson sought to subpoena the girls' health records, but Judge Crnkovich quashed the subpoenas. Filing 154 at 104, 107. Wang Anderson claims the evidence was insufficient to support the juvenile court's order. Filing 154 at 107.

         Meanwhile, Heathershaw Risko suggested to the family permanency specialist that the NDHHS would not be recommending reunification as the ongoing permanency objective. Filing 154 at 92. This, Wang Anderson suggests, undermined efforts at reunification and led to family therapy including X.C.W.'s foster parents instead of Wang Anderson. Filing 154 at 93. Generally, Wang Anderson blames the NDHHS for preventing, or failing to facilitate, visitation throughout the pendency of the juvenile proceeding, which she says caused the family relationship to deteriorate. Filing 154 at 106.

         In the meantime, 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. Wang Anderson claims that Judge Crnkovich denied her equal protection by not considering a recommendation to place X.C.W. with her Chinese relatives. Filing 154 at 101. 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. Wang Anderson filed an "Ex Parte Motion for Immediate Relief" relating to this incident in the juvenile court, but Judge Crnkovich denied the motion without a hearing, which Wang Anderson asserts was a denial of due process. Filing 154 at 111.

         Soon thereafter, on the motion of X.C.W.'s guardian ad litem, Judge Crnkovich ordered that no "gifts, clothing items, books, etc." should be provided to the children without approval of the Court. Filing 154 at 112. In a separate order the next day, Judge Crnkovich suspended contact between Wang Anderson and X.C.W. Filing 154 at 112. (Wang Anderson's complaint does not indicate what might have prompted these orders or the guardian ad litem's initial motion.) Wang Anderson claims her due process rights were violated. Filing 154 at 112.

         About a month later, the NDHHS filed a "notice of change of placement" for X.C.W.: her foster parents were moving from Bellevue, Nebraska to Blair, Nebraska, and X.C.W. was going with them. Filing 154 at 112-13. Wang Anderson objected, but Judge Crnkovich overruled her objection and, at the end of the hearing, imposed a filing restriction on Wang Anderson, directing her counsel only to file with the permission of Wang Anderson's guardian ad litem. Filing 154 at 113.

         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 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. Generally, Wang Anderson blames NDHHS, Phillips, Weinberg, and Steuter for failing to protect X.C.W. from the repeated sexual exploitation that Wang Anderson alleges to have occurred. Filing 154 at 85, 105.

         Wang Anderson filed another "Motion for Emergency Hearing" in association with this incident. Filing 154 at 117-18. At that hearing, Wang Anderson alleges, Judge Crnkovich instructed Wang Anderson's counsel to take direction from Wang Anderson's guardian ad litem, explaining that Wang Anderson's "mental health challenges are profound" and "apparent in every interaction." Filing 154 at 118. This, Wang Anderson claims, was also a denial of due process. Filing 154 at 118-19. But a month later, Judge Crnkovich terminated the appointment of Wang Anderson's guardian ad litem. Filing 154 at 119. Wang Anderson asserts that because of the "illegal" appointment of the guardian ad litem, "Judge Crnkovich did not consider or respond to the life-threatening concerns about X.C.W. raised by Wang Anderson, for several months, and X.C.W. and Wang Anderson suffered damage." Filing 154 at 119.

         In May 2016, the juvenile court changed the permanency objective for X.C.W. to independent living. Filing 154 at 121. At the same time, Judge Crnkovich denied Wang Anderson's requests for visitation with X.C.W. Filing 154 at 121. X.C.W. 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 blames the NDHHS, Phillips, Weinberg, and Steuter for placing X.C.W. into independent living when, according to Wang Anderson, she was not yet ready. Filing 154 at 122.

         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 State Defendants, Wang Anderson asserts:

1. A § 1983 claim based on Fourth Amendment unlawful seizure against White (filing 154 at 124);
2. State-law negligence claims against all defendants (filing 154 at 130);
3. A ยง 1983 claim based on violation of the "substantive due process rights to family integrity and the parent-child relationship" against all "Individual ...

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