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The Estate of B.I.C. v. Gillen

United States District Court, Tenth Circuit

September 12, 2013

THE ESTATE OF B.I.C., a Minor Child, Deceased, LARRY F. CROSETTO, Individually and as Next Friend of C.S.C., a Minor Child, and MARY LOU CROSETTO, Plaintiffs,
v.
LINDA GILLEN, Individually and as an agent of the Kansas Social and Rehabilitation Services, Defendant.

MEMORANDUM AND ORDER

MONTI L. BELOT UNITED STATES DISTRICT JUDGE

Before the court is defendant’s supplemental motion for summary judgment (Doc. 85). The motion has been fully briefed and is ripe for decision. (Docs. 87, 88). For the reasons stated more fully herein, defendant’s motion is granted.

I. Facts and Procedural History[1]

Plaintiffs Larry and Mary Crosetto (“the Crosettos”) are the grandparents of Brook[2] and C.S.C., both minors. For the majority of 2006, Brook lived with the Crosettos during the week. In August 2006, Brook’s mother Angela left Randy Coons, Brook’s father, and moved into the Crosettos’ home. Angela died on August 9, 2007, and Coons removed Brook from the Crosettos’ home on August 18. Brook continued to stay with the Crosettos on several weekends and at times when Coons did not have a babysitter. Coons lived with his girlfriend, Melissa Wells, who has since been found guilty of Brook's murder and claims to have been suffering from a methamphetamine addiction at the time.

Defendant Linda Gillen has been a social worker with the Kansas Department of Social and Rehabilitative Services (“SRS”) in Coffeyville, Kansas for the past several decades. The Crosettos claim that defendant had intense hatred for their family, stemming from events that occurred during their adoption of Angela in 1982. The Crosettos also claim that defendant knew about Melissa Wells and her background because she had been in the custody of SRS as a child.

In Fall 2007, the Crosettos began noticing bruising on Brook. That September, the Crosettos’ babysitter, Allison Horner, observed that Brook had a black eye, a busted lip with stitches and random bruising on her body. Ms. Horner called SRS’s child protection hotline and described Brook’s injuries. Ms. Horner provided Brook’s name and birth date and told the hotline that Brook’s father was Randy Coons and her brother was C.S.C.

On September 17, a Unified School District 445 (“USD 445") employee, Bev Mashburn, filled out a social work referral form for C.S.C. Ms. Mashburn detailed in her referral that Mr. Crosetto described Brook as always having bruises and recently had stitches in her lip. Ms. Mashburn also stated that Mr. Crosetto was trying to maintain an amicable relationship with Coons and while Mr. Crosetto was not trying to make unsubstantiated allegations, he wanted to make sure his grandchildren were living in a safe environment.

On October 7, Mr. Crosetto took Brook to the hospital emergency room. However, the Crosettos did not contact SRS because they were in the process of creating a conservatorship for Brook and C.S.C.

At around the same time, Mr. Crosetto called the fire department and inquired whether he could force a fire inspection. Fire Chief Greg Allen said that he would look into the matter. Chief Allen inspected the exterior of Coons’ house and left a note requesting permission from Coons to inspect the inside. Neither Coons nor Wells responded to Chief Allen’s request and apparently, Chief Allen let the matter drop.

On November 5, defendant responded to a Protection Report Center (“PRC”)[3] report from USD 445 regarding a 2-inch by 2-inch red mark on the right side of C.S.C.’s face that required icing down. Wells admitted to getting upset with C.S.C. and slapping him across the face. Defendant investigated the report, but found any allegation of abuse to be unsubstantiated. Defendant met with Coons and Wells for approximately 45 minutes and implemented a safety plan.

On November 6, Mr. Crosetto called defendant but received no answer or returned phone call. Mr. Crosetto wanted to discuss his concerns regarding the bruising on C.S.C. and Brook He also tried unsuccessfully to call defendant on November 14, 15, and 16.

On or around November 14, Coffeyville Police Department School Resource Officer Ed Rutherford investigated whether Coons and Wells were using drugs.

On November 20, Mr. Crosetto got in contact with defendant. He discussed the incident with C.S.C. Defendant stated that a case had been opened and that she had been to Coons’ home to investigate.[4] Mr. Crosetto brought up Brook’s bruising and that he suspected Wells was using drugs. Defendant responded that these allegations were “police matters and refused to discuss them.” (Doc. 54 at 11).[5]

On December 10, Mr. Crosetto called defendant to discuss Brook’s injuries because he believed that they were escalating. According to Mr. Crosetto, defendant stated that “her job was to preserve the family unit and not to investigate child abuse.”[6] (Doc. 54 at 11). Mr. Crosetto scheduled an appointment with defendant to discuss her duties.

On December 12, Mr. Crosetto asked school officials for help but was told by USD 445 social worker Duane Powell that SRS was handling the situation.

On December 23, the Crosettos were at church when their family physician, Allen Gillis, D.O., saw Brook’s facial bruises. Dr. Gillis recommended that Brook be examined. The next day, Mr. Crosetto took Brook to Chan Han, M.D. for examination. Based upon his findings, Dr. Han called the police and sent a letter to the SRS office. Dr. Han requested SRS to investigate the situation and get back to him. However, Dr. Han received no response.

On December 24, while Brook was being examined by Dr. Han, Officer Rutherford observed Brook and spoke with Mr. Crosetto. Mr. Crosetto told Officer Rutherford that SRS had an open case on C.S.C. and Brook and that SRS was having difficulty contacting Coons and Wells at their home. Officer Rutherford stated that he would be filing a Child in Need of Care case after contacting Montgomery County officials.

Officer Rutherford left a telephone message for defendant regarding the doctor visit to Dr. Han, but received no response. After Officer Rutherford completed his report, he sent it to SRS, the Juvenile County Attorney’s office and the truancy officer. Officer Rutherford assumed that SRS would investigate and handle the matter after it received his report.

On December 28, the Crosettos went to their appointment with defendant. Mr. Crosetto tried to give defendant a CD of pictures portraying Brook injuries, but she refused to accept it and told Mr. Crosetto that the CD was a police matter. The meeting did not end amicably. The Crosettos believed that defendant had some animus against them and was not going to protect Brook and C.S.C. until one of their grandchildren was killed.

On January 17, 2008, the Coffeyville Police Department responded to a 911 call and found Brook unresponsive in Wells’ care. Brook had head trauma and bruises on her body. She was hospitalized at the Coffeyville Regional Medical Center and then later flown to the St. Francis Medical Center in Tulsa, Oklahoma. There, doctors discovered “a brain bleed from a blow to the head and brain damage resulting from Shaken Baby ...


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