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N.E.L. v. Gildner

United States District Court, D. Kansas

March 7, 2018

N.E.L., M.M.A., and E.M.M., Plaintiffs,
MONICA GILDNER, et al., Defendants.



         Plaintiffs N.E.L., M.M.A., and E.M.M. bring this action against defendants Monica Gildner, Angela Webb, and Tina Abney, for violations of their constitutional rights under 42 U.S.C. § 1983. Plaintiffs allege defendants-who at the relevant time were social workers with the Kansas Department of Children and Families (“DCF”)-engaged in a series of acts which led to plaintiffs' unconstitutional seizure and detainment. The matter is now before the court on defendants' Motion to Dismiss Second Amended Complaint (Doc. 120). For the reasons set forth below, the court grants the motion.

         I. Background

         This case has a long, storied past. It comes before this court after it was transferred from the District of Colorado on March 14, 2017. Plaintiffs originally filed their complaint in the District of Colorado on December 31, 2015, alleging constitutional violations against defendants as well as two Colorado state officials and Douglas County, Colorado. A magistrate judge recommended the district court grant defendants' motions to dismiss, finding the Colorado defendants were entitled to qualified immunity and that the court lacked personal jurisdiction over the Kansas defendants. (Doc. 91.) The district court judge adopted the recommendations and transferred the claims against the Kansas defendants to this court. (Doc. 98.) Upon transfer, plaintiffs filed a second amended complaint against defendants. This amended complaint is the subject of the current motion to dismiss.

         Accepting the facts in the second amended complaint as true and viewing them in the light most favorable to the plaintiffs, the court will summarize the incident that gave rise to the current litigation.

         Plaintiffs are three of John Doe and Jane Doe's ten children. In 2008, John Doe, Jane Doe, and their ten children lived in Johnson County, Kansas. In the spring of 2008, one of the younger children, who is not a party to this case, began exhibiting troubling behavior and making comments regarding improper behavior involving a relative of Jane Doe. The parents made a report to authorities at the Kansas Department of Social and Rehabilitation Services (now known as DCF) and advised them that none of their children had seen the relative, or any other members of Jane Doe's family, since 2006.

         Defendant Monica Gildner was assigned by her superiors, defendant Angela Webb and defendant Tina Abney, to oversee the Doe family's case. Defendants referred the children to Sunflower House for interviews regarding the alleged abuse. After a criminal investigation into the allegations against the relative, law enforcement notified defendant Gildner that no charges would be pursued. Gildner then closed the Doe family's file. After the file was closed, however, the reporting child shared additional information, which the parents reported to DCF. Defendant Gildner referred the child again to the Sunflower House and reopened the DCF file. Another Doe child then reported abuse by the same relative and was referred to the Sunflower House. The children were also seeing a counselor.

         At some point, defendant Gildner took the position that the abuse allegations against the relative were fabricated and that Jane Doe was suffering from post-partum depression and mental instability. She recommended the children continue counseling and that Jane Doe begin counseling. John Doe then attempted to cease contact with defendant Gildner because of her adversarial position to his wife and him and her “antagonistic, biased, and baseless positions.” Defendants Webb and Abney refused to replace defendant Gildner with a different social worker. At some point after John Doe asked for defendant Gildner to be taken off the case, Gildner threatened to initiate court action and required that the entire family participate in Family Preservation Services, which plaintiffs allege was in retaliation for John Doe's complaint against her.

         In February 2009, defendant Gildner received two more reports regarding the allegations by the second-reporting Doe child. Shortly thereafter, John Doe filed a formal complaint with DCF regarding defendant Gildner's inaction as he was concerned that no medical exams were ordered and no follow up interviews were being conducted for the child. Defendant Gildner sought a meeting with John Doe to discuss her concerns about the children being subjected to continued interviews about the allegations and how the family was going to move forward. Plaintiffs allege defendant Gildner believed the relative and maternal grandmother's denials of the alleged abuse over the children's claims. Defendant Gildner told John Doe that if he refused to meet with her or participate in recommended services that she may have to involve the District Attorney's Office and the court. Plaintiffs allege this meeting and the imposition of services was in retaliation for their complaint against her.

         In March 2009, a third Doe child reported abuse allegations by the same relative to DCF. On April 20, 2009, the District Attorney's Office filed Child In Need Of Care (“CINC”) petitions for all ten of the Doe children in the Johnson County, Kansas District Court. After the petitions were filed, the court set a non-emergency hearing for May 11, 2009. The children remained in John and Jane Doe's custody.

         On April 29, 2009, John Doe notified defendant Gildner that he was willing to participate in Family Preservation Services. On April 30, 2009, defendant Gildner was notified by a relative of the Doe family that Jane Doe and the children may have left town. Evidence suggested Jane Doe and the children had gone to Colorado. On May 4, 2009, defendant Gildner went to the Doe home and met John Doe, who told her any contact with him needed to be through his attorney. John Doe provided the address of where the family was in Colorado to the Overland Park, Kansas police.

         On May 5, 2009, defendants sought an ex parte order of protective custody. An application for the order was filed by the District Attorney's Office and was granted by the Johnson County District Court. According to the order, the court found:

1. that remaining in the home would be contrary to the welfare of the children,
2. immediate placement was in the best interest of the children based on allegations of physical, sexual, mental, or emotional abuse in the CINC petitions and,
3. it was reported that the children had left the area, that John Doe had refused to provide any information about the whereabouts of the children, and that the whereabouts of the children were presently unknown.

         Plaintiffs allege defendants “fraudulently misrepresented to the court the factual basis for obtaining the Ex Parte Orders and participated in intentionally crafting the language of the Ex Parte Order to make it appear that an immediate danger to the children existed when Defendants knew in fact that no such immediate danger existed or . . . they had no facts upon which to form a reasonable suspicion that Plaintiffs were in immediate danger . . .” (Doc. 114, at 15-16.)

         Plaintiffs allege the following facts in the ex parte order that falsely state or insinuate in a manner intended to alarm and mislead:

• That the parents had committed physical, sexual, mental, or emotional abuse when such statement had no basis in the facts alleged in the CINC petitions or in the facts known to defendants.
• That John and Jane Doe had refused Family Preservation Services when in fact John Doe had specifically accepted the offer of Family Preservation Services.
• That an emergency existed which threatened the safety of the children when defendants knew the Doe children were not in danger based on their actions:
• in initially closing the DCF file
• in disbelieving that the children's abuse had actually occurred
• in filing CINC petitions only after John Doe had lodged a complaint against defendant Gildner
• in not seeking immediate custody of the children upon filing the CINC petitions
• in failing and refusing to contact John and Jane Doe's attorney or the children's court-appointed guardian ad litem prior to seeing the ex parte order.
• That John Doe would not provide any information on the whereabouts of the children when he actually instructed defendant Gildner to contact his attorney, which she did not.
• That the whereabouts and safety of the children were unknown, when defendants knew that Jane Doe and the children had gone to Colorado and defendants made no attempt to obtain ...

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