Wang Anderson v. State

          MEMORANDUM AND ORDER

          John M. Gerrard, United States District Judge.

         This matter is before the Court on the motion to dismiss (filing 264) filed by Nebraska Families Collaborative (NFC) and Daniel Little, Deanna "Nina" Sheller, Sara Smith, Evan Winans, Melissa Nance, Nicole Paul, Anna Richardson, David Newell, Anne Petzel, and Jennifer Richey (collectively, the NFC 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.

         NFC is a nonprofit corporation that Wang Anderson alleges "had a contract with [the Nebraska Department of Health and Human Services (NDHHS)] to provide case management and an individualized system of care for families and their children and youth who are wards of NDHHS involved in the Child Welfare or Juvenile Court System." Filing 154 at 7. Newell was the chief executive officer of NFC. Filing 154 at 6. Sheller, Smith, Winans, Little, Nance, Richardson, Paul, Petzel, and Richey were all employed by NFC in one capacity or another, such as family engagement specialist, family permanency specialist, family permanency specialist supervisor, or family permanency director. Filing 154 at 8-11.

         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 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, she was also placed in the temporary custody of NDHHS. Filing 154 at 36. Wang Anderson alleges, however, that X.C.W. told Sheller that she felt safe with her mother and wanted to go home. Filing 154 at 43.

         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. An ex parte juvenile court order placed the girls in the temporary custody of NDHHS, then after a hearing, the juvenile court continued NDHHS's temporary custody. Filing 154 at 45-46.

         Wang Anderson claims that both girls began to show signs of "mental, emotional and physical distress" that went unnoted and untreated, by NFC, Smith, and Winans among others. Filing 154 at 48-49; see Filing 154 at 65. 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. As a general matter, Wang Anderson complains about the failure to provide or facilitate visitation or family therapy throughout the pendency of the juvenile proceeding, and accuses several of the NFC Defendants, among others, of being responsible for that. Filing 154 at 41-42, 47, 62-64, 70-75, 81, 86-88, 94. As a corollary, she also alleges that several of the NFC Defendants failed to promote family reunification to the girls' therapists as a goal of therapy. Filing 154 at 42.

         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, NDHHS 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. The juvenile court dismissed the termination petitions, but the girls were 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.

         Meanwhile, X.C.W. had been held out of school during her eating disorder program. Filing 154 at 60. Wang Anderson blames NFC, Smith, and Winans, among others, for harming X.C.W.'s education. Filing 154 at 60-61, 80. But her medical condition had deteriorated, and more intensive treatment was recommended. Filing 154 at 68. Wang Anderson alleges that several of the NFC Defendants were responsible for not properly coordinating or arranging for X.C.W.'s health care services. Filing 154 at 68-69. X.C.W. was placed at the Laureate Psychiatric Clinic and Hospital in Tulsa, Oklahoma. Filing 154 at 73.

         Wang Anderson alleges that her contact with X.C.W. at Laureate was frustrated by the failure of several of the NFC Defendants to provide Laureate with a juvenile court order providing for visitation and family therapy. Filing 154 at 74. She also alleges that NFC, Winans, and Smith failed to provide Laureate with accurate or complete information about her. Filing 154 at 76. And she alleges that X.C.W.'s therapist at Laureate thought X.C.W. should have contact with her parents, but Smith never arranged for it or told the juvenile court. Filing 154 at 79.

         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. Wang Anderson blames NFC, Richardson, Paul, and Little for not permitting Wang Anderson to arrange for X.C.W.'s transportation, not properly supervising X.C.W., and for allowing X.C.W. to have a phone. Filing 154 at 89-90, 105. And she blames NFC, Richardson, and Paul for failing to have the incident investigated or prevent future contact between X.C.W. and the man. Filing 154 at 105.

         X.C.W.'s anorexia relapsed, and she was again hospitalized. Filing 154 at 91-92. X.C.W. blames several of the NFC Defendants for not acting to provide X.C.W. with proper care. 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, 106. She blames NFC, Little, Richardson, and Paul for allegedly refusing to comply with the juvenile court's visitation order or arrange for visitation. Filing 154 at 95. In particular, she alleges that Richardson lied to counsel in the juvenile court proceeding in an email indicating that X.C.W. didn't want to make a telephone call to her parents. 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.

         The juvenile court also ordered that school records and information should be provided to Wang Anderson and Wang only through a family permanency specialist-essentially, preventing Wang Anderson from communicating with school personnel. Filing 154 at 92. And the juvenile court 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. Wang Anderson claims that order violated her First Amendment rights-but, she also alleges that the order wouldn't have been entered had the NFC Defendants arranged necessary services and provided her with information in the first place. Filing 154 at 93.

         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 her Chinese relatives, despite statutory and regulatory provisions Wang Anderson says should have preferred such a placement. Filing 154 at 100. Wang Anderson accuses the NFC defendants of breaking those rules and discriminating against them for being Chinese. Filing 154 at 83, 100; see Filing 154 at 102.

         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 blames NFC, Little, Richardson, and Paul for allowing X.C.W. to attend the meeting, allegedly without providing for an "appropriate safety plan." 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, by NFC, Richardson, and Paul among others. Filing 154 at 109-10. Wang Anderson claims the incident wasn't discovered because NFC, Richardson, and Paul weren't monitoring X.C.W.'s text messages. Filing 154 at 109. Wang Anderson generally accuses X.C.W.'s foster parents of being incompetent, and alleges that several of the NFC Defendants knew that but arranged for X.C.W.'s placement with them anyway. Filing 154 at 85-86, 91, 102-03, 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. Wang Anderson alleges that she was "interrupted and cut off" because NFC, Richardson, and Paul failed to appropriately address the "critical incident" Wang Anderson says occurred. Filing 154 at 111. 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 ...