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Wang Anderson v. State

United States District Court, D. Nebraska

August 5, 2019

THE STATE OF NEBRASKA, et al., Defendants.



         This matter is before the Court on plaintiff Catherine Yang Wang Anderson's Motion for Reconsideration and for Leave to File Second Amended Complaint (filing 510). Wang Anderson asks the Court to reconsider-and to allow her to plead over-the Court's previous orders granting several defendants' motions to dismiss. But the Court finds no basis to reconsider its previous rulings, and concludes that Wang Anderson's second amended complaint would be futile. Accordingly, the Court will deny her motion.

         I. BACKGROUND

         As set forth in Wang Anderson's operative complaint, 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.

         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. Millard Public Schools (MPS) is the public school district where X.C.W. was attending school-specifically, Millard West High School-when the events giving rise to this litigation began. Filing 154 at 11-12, 23. According to Wang Anderson, Y.C.W. had an "inappropriate" personal relationship with Matthew Heys, her history teacher, because Y.C.W. was permitted and encouraged to confide in him about personal problems.[1] Filing 154 at 24-28. Y.C.W. told Heys she had sexual identity issues. Filing 154 at 35. Heys never attempted to communicate with Wang Anderson about Y.C.W.'s problems. Filing 154 at 35. Heys later explained that he did not believe Wang Anderson would understand, and that she "would be very angry and would hurt [Y.C.W.] if she found out." Filing 154 at 36.

         Wang Anderson alleges that Y.C.W. communicated confidentially with Heys beginning in August or September 2013, by email and text message, despite the fact that Y.C.W. was no longer in his history class. Filing 154 at 26. Heys did not report this communication to anyone until October, when he told a school counselor after Wang Anderson found out about it. Filing 154 at 27. And according to Wang Anderson, Millard West Principal Gregory Tiemann and Millard West counselor Susan Hancock knew about Y.C.W.'s communication with Heys and failed to stop it, despite being asked to do so by Wang Anderson. Filing 154 at 27. Wang Anderson also alleges that MPS has "policies, practices, customs or usages . . . which essentially allowed teachers to act as counselors or confidants for students, in violation of the rights of parents . . . to direct the education and moral development of their children." Filing 154 at 28. Wang Anderson blames Y.C.W.'s friendship with Heys for a "breakdown" in her own relationship with Y.C.W. Filing 154 at 28.

         After Wang Anderson drove Y.C.W. to school on October 8, 2013, she went directly to Heys, who took her to Hancock to report that Wang Anderson had threatened her. Filing 154 at 28. The Sarpy County deputy sheriff assigned to Millard West as the school resource officer spoke to Y.C.W. shortly thereafter. Filing 154 at 28. Officers went to Wang Anderson's home, where they told her about Y.C.W.'s allegations. Filing 154 at 30. Wang Anderson denied them, and law enforcement asked her to go to Millard West to meet to a counselor about them, which she did. Filing 154 at 30.

         The meeting at Millard West included Wang Anderson, Hancock, and the resource officer, who said that Y.C.W. had made a number of reports, including that Wang Anderson had threatened to shoot her. Filing 154 at 30. Wang Anderson denied those reports. Filing 154 at 30. Wang Anderson explained her own concerns about the friendship between Y.C.W. and Heys, but according to Wang Anderson, Hancock disregarded them. Filing 154 at 30. Based on Y.C.W.'s report that she didn't feel safe going home, sheriff's officers removed her from Wang Anderson's residence and took her to Project Harmony for a temporary foster placement with Susan Derr. Filing 154 at 33-34.

         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 (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 the NDHHS. Filing 154 at 36.

         NDHHS case management was handled by the Nebraska Families Collaborative (NFC), 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. David Newell was the chief executive officer of NFC. Filing 154 at 6. Daniel Little, Deanna "Nina" Sheller, Sara Smith, Evan Winans, Melissa Nance, Nicole Paul, Anna Richardson, Anne Petzel, and Jennifer Richey (collectively, with Newell, the "NFC defendants") 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.

         X.C.W. was also placed in foster care with Derr, and both girls were evaluated at Project Harmony. Filing 154 at 34, 37, 43. Wang Anderson alleges that Suzanne Haney, M.D., a physician employed by either Douglas County or Project Harmony, [2] examined X.C.W. and Y.C.W. there, and that she was negligent in evaluating and treating them. Filing 154 at 43.

         But, Wang Anderson also alleges, X.C.W. told Sheller she felt safe with her mother and wanted to go home. Filing 154 at 43. Nonetheless, 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 the NDHHS, then after a hearing, the juvenile court continued the 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 admitted to a program at Children's Hospital and Medical Center for treatment of eating disorders. Filing 154 at 54. Wang Anderson alleges that Martin Harrington, M.D. (psychiatrist and program director) and Kara Beals (a licensed independent mental health practitioner employed by Children's) 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 X.C.W. was prescribed medications without parental consent. Filing 154 at 66.

         On the 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. She also claims her right to visitation with X.C.W. was interfered with by Children's, Harrington, Beals, and Children's psychologist Michael Vance, 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 71-72.

         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 finally adjudicated as being juveniles within the meaning of Neb. Rev. Stat. § 43-247(3). Filing 154 at 81. 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. Her 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. 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 76.

         Wang Anderson also 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, with Jennice Reid-Hansen and Tyler Hansen. Filing 154 at 84. According to Wang Anderson, Reid-Hansen and Hansen provided foster care services "pursuant to a contract or agreement with the State of Nebraska, NDHHS, NFC, or KVC [Behavioral Healthcare Nebraska, Inc.]" Filing 154 at 18. Wang Anderson's allegations against KVC arise out of X.C.W.'s placement with Reid-Hansen and Hansen. See filing 154 at 84-85.

         X.C.W. continued treatment for her eating disorder at Children's Hospital in Omaha. Filing 154 at 83-84, 86. Sometimes, Reid-Hansen and Hansen were unable to take X.C.W. 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 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.

         Wang Anderson also 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. Wang Anderson complains that Harrington, Beals, and Christina Johnson-Gunn, M.S., L.M.H.P. 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 ongoing failure to provide family therapy-attributable to Children's, Harrington, and Beals, among others-was contrary to the standard of care and unconstitutional. Filing 154 at 56, 106-07.

         After discharge from Remuda Ranch, X.C.W. was returned to Reid-Hansen and Hansen. 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 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 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, or 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. And Harrington is 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.

         For a 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 and Harrington, 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.

         Starting 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 119.

         In January 2016, several officials and care providers-including Harrington-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 NFC, Richey, and Petzel acted "with deliberate indifference to X.C.W.'s serious health needs" by removing Johnson-Gunn as the family therapist, falling below the standard of care and violating X.C.W.'s constitutional rights. Filing 154 at 120.

         Meanwhile, X.C.W. was allowed by Reid-Hansen and Hansen-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 Reid-Hansen and Hansen. 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. Wang Anderson blames the NFC defendants, who allegedly "failed to provide necessary transportation for X.C.W. and allowed her unmonitored and unsupervised access to electronic communication devices and the internet." Filing 154 at 117. And she contends that NFC, Petzel, and Richey failed to bring the incident to the juvenile court's attention. Filing 154 at 117.

         It's not completely clear from the complaint what was happening with Y.C.W. during much of that time. But Wang Anderson alleges that "from October 8, 2013 through April 8, 2016," most of the NFC defendants failed to provide for Y.C.W.'s needs, and her health declined. Filing 154 at 120.

         In May 2016, the juvenile court changed the permanency objective for X.C.W. to independent living. Filing 154 at 121. Wang Anderson alleges that happened, in part, because NFC, Richey, and Petzel "presented false, misleading, or inaccurate information" to the juvenile court, although it's not clear what that was. 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. Wang Anderson claims that the NFC defendants should have known X.C.W. was too vulnerable for independent living, and failed to provide for her care. Filing 154 at 122. In December 2016, she was returned to Reid-Hansen and Hansen 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 asserted 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 claimed 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 claimed 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 said, 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 asserted 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.

         The Court dismissed many of those claims. As most relevant to Wang Anderson's motion to reconsider and for leave to amend, the Court dismissed the negligence claims asserted against X.C.W.'s foster parents, see filing 481, some of X.C.W.'s medical care providers, see filing 485, KVC, see filing 490, and the NFC defendants, see filing 502. And the Court dismissed the constitutional claims asserted against MPS, Heys, Tiemann, and Hancock (the Millard defendants). See filing 498.


         The Court should freely give leave to amend a complaint when justice so requires. Fed.R.Civ.P. 15(a)(2); see Kozlov v. Associated Wholesale Grocers, Inc., 818 F.3d 380, 394 (8th Cir. 2016). But parties do not have an absolute right to amend their pleadings, even under this liberal standard. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008); see Sorace v. United States, 788 F.3d 758, 767 (8th Cir. 2015). And futility is a valid basis for denying leave to amend. Munro v. Lucy Activewear, Inc., 899 F.3d 585, 589 (8th Cir. 2018), cert. denied, 139 S.Ct. 941 (2019).

         When the Court denies leave on the basis of futility, it means the Court has reached the legal conclusion that the amended complaint could not withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. at 589. To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court must accept as true all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party, Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Iqbal, 556 U.S. at 678.

         A plaintiff's motion to amend the complaint will be granted if she shows that such an amendment would be able to save an otherwise meritless claim. Munro, 899 F.3d at 589. But permission to amend may be withheld if the plaintiff does not have colorable grounds for relief. Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 616 (8th Cir. 2003).


         Wang Anderson's motion is directed at reviving her negligence claims against the following sets of defendants: (1) the NFC defendants; (2) Reid-Hansen, Hansen, and Derr; (3) KVC; and (4) Children's, Harrington, Haney, Beals, and Johnson-Gunn (collectively, the Children's defendants). Filing 510 at 1. In addition, Wang Anderson seeks to undo the dismissal of her constitutional claims against the Millard defendants. Filing 510 at 1-2.

         It is, however, not entirely clear to the Court what Wang Anderson's combined motion for reconsideration and for leave to amend is asking for, precisely-that is, it's not clear whether Wang Anderson is arguing that the claims she wants reinstated should be reinstated because she contends the Court was wrong in the first place, or because she now states a claim for relief in her proposed amended complaint. See filing 511 at 2-4. That also means it's unclear whether her motion for leave to amend is meant to resuscitate other claims that the Court dismissed, but are repleaded in her proposed amended complaint-her brief discusses none of them in particular. See filing 511 at 5. And her reply brief exacerbates the confusion. E.g.filing 551 at 12, 18-19.

         The Court is not persuaded that Wang Anderson can file an enormous proposed amended complaint and simply assert that it "cures the deficiencies which the Court found in her Amended Complaint," filing 511 at 5, without actually explaining how. Below, the Court's discussion will be largely limited to the claims for which Wang Anderson seeks reconsideration-that is, the Court's decision will actually discuss the claims that Wang Anderson's briefing also actually discusses.

         1. The NFC Defendants

         The NFC defendants argue that Wang Anderson's request to amend her negligence claims against them should be denied for two reasons: first, because they don't satisfy Fed.R.Civ.P. 8, and second, because they did not ...

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