United States District Court, E.D. Kentucky, Northern Division, Covington
HOLLY SCHULKERS, ET AL. PLAINTIFFS
ELIZABETH KAMMER, ET AL DEFENDANTS
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Kentucky Cabinet for Health
and Family Services (“CHFS”) defendants'
motion to dismiss or in the alternative motion for summary
judgment. (Doc. 56). The Court previously heard oral argument
on this motion and took it under submission. (Doc. 73).
further study, the Court now issues the following Memorandum
Opinion and Order.
and Procedural Background 
February 8, 2017, Plaintiff Holly Schulkers was admitted to
St. Elizabeth Medical Center, Inc. (“St.
Elizabeth”) for a scheduled labor induction. (Doc. 34,
¶ 14). Holly's prenatal lab tests were
“negative” for substance dependency or abuse; she
had no history of drug use and would not require drug
treatment upon delivering her child. Id. at ¶
32. Nonetheless, roughly sixteen hours before Holly
eventually gave birth, St. Elizabeth's tested a sample of
Holly's urine and, without running a confirming test,
charted a “presumptive
positive” result for opiates. Id. at
¶¶ 28, 33; (Doc. 21-1 at 9 (sealed)). Holly did not
consent to a urine or blood test for drugs; nor was she ever
told that such a test had been performed. (Doc. 34,
¶¶ 16, 17, 33). The report, nevertheless, stated:
“Results should not be used for non-medical
purposes.” (Doc. 34, ¶ 27); (Doc. 21-1 at 9).
gave birth to AMS without complications on February 9, 2017.
(Doc. 21-2 at 12-13). Within the first hour after
giving birth, Holly breastfed AMS. (Doc. 34, ¶ 16). On
the morning of February 10, 2017, Holly's husband,
Plaintiff David Schulkers, was informed by the pediatrician
that the plan was to discharge mother and child sometime in
the afternoon. Id. at ¶¶ 14-15.
time later, however, Holly was visited by Defendant Anne
Marie Davis, a care coordinator and social worker with St.
Elizabeth's. Davis informed Holly that she had tested
positive for opiates and that AMS's umbilical cord was
also tested but the results were pending. Id. at
¶¶ 16, 8. Holly explained to Davis that she had
eaten Stacey's Everything Bagel Chips, which contained
poppy seeds, and had taken some of her daughter's
prescription cough medicine. Id. at ¶¶ 16,
19. Davis responded that none of these items would cause a
positive result unless the cough medicine contained codeine,
which Holly was unable to confirm at the time. Id.
at ¶ 16; (Doc. 21-1 at 2).
receiving the toxicology results for the umbilical cord,
Davis charted that Holly had a “Substance Use
Disorder.” (Doc. 21-1 at 1). Pursuant to her
affirmative duty under Kentucky law,  Davis then reported to the
Kentucky Cabinet for Health and Family Services via a
web-based reporting system that Holly had a “positive
drug screen” (the “Report”). (Doc. 67-3 at
1 (sealed)); (Doc. 34, ¶¶ 17, 25-26). The CHFS intake
worker who received the report did not speak with anyone at
St. Elizabeth's. (Doc. 67-4, Grimes Dep. at 37, 48). CHFS
accepted the report, concluding that Holly posed a
“Risk of Harm” for “testing positive for
medication not prescribed to her” and assigned the case
to Defendant Alison Campbell. (Doc. 67-3 at 3).
that day, Defendant Deborah Cinque, a St. Elizabeth Nurse
Manager, informed the Schulkers that AMS could not be
discharged because hospital policy required she be observed
for 72 hours for symptoms of withdrawal. (Doc. 34, ¶
20); (Doc. 21-1 at 61). Holly was discharged and was allowed
to continue breastfeeding AMS during the 72-hour observation
period. (Doc. 34, ¶ 21).
“The Prevention Plan”
evening of February 10, two social workers with CHFS,
Defendants Elizabeth Kammer and “Kara, ” entered
Holly's hospital room. Holly was told she had tested
positive for heroin. (Doc. 34, ¶ 35). Holly insisted
there had been a mistake and explained that she was a child
care worker, her son's basketball coach, volunteered at
the school cafeteria, and did not use drugs. Id.
When Kammer requested Holly submit to another drug test,
Holly agreed, and nurses obtained another urine sample for
testing. Id. at ¶ 36; (Doc. 21-1 at 5, 10-11).
In the meantime, Kammer, who was still in training at the
time, placed a phone call to Campbell, her supervisor.
Campbell spoke with Holly and stated that “until this
gets figured out you are no longer allowed to be around any
children without the supervision of approved
individuals.” (Doc. 34, ¶ 37); (Doc. 67-8, Kammer
Dep. at 8-10). After this call, Kammer presented the
Schulkers with a predominately handwritten “Prevention
Plan.” (Doc. 67-9 (sealed)).
one-page Prevention Plan states-in handwritten ink-that Holly
was prohibited from having contact “with all
children” unless an approved supervisor was within
“eye & ear shot at all times (24/7).” (Doc.
34, ¶ 41). Kammer explained that a violation of these
terms would result in the Schulkers' children being
removed from their care. Id. at ¶¶ 41-42.
Stamped at the bottom of the document, in all capital
lettering, it states: “ABSENT EFFECTIVE PREVENTATIVE
SERVICES, PLACEMENT IN FOSTER CARE IS THE PLANNED ARRANGEMENT
FOR THIS CHILD.” Id. at ¶ 40. In truth,
there was no planned arrangement for foster care. Rather, the
foreboding stamped language is standard on every
prevention plan at CHFS. (Doc. 67-6, Campbell Dep.
at 96-97 (sealed)). The Schulkers were vehemently opposed to
signing the document. (Doc. 67-2, David S. Aff., ¶ 6);
(see Doc. 67-1, Holly S. Aff., ¶ 8). Yet the
Schulkers were told if they did not agree to the Prevention
Plan, their children would be removed from their care
“and after that” CHFS would seek court
intervention. (Doc. 34, ¶ 42); (Doc. 67-1, ¶ 6).
Under these conditions, Kammer and the Schulkers signed the
plan. (Doc. 34, ¶ 42); (Doc. 67-9).
night nurse questioned the Prevention Plan and reported that
the doctors and staff believed the initial toxicology test to
be a false positive. (Doc. 34, ¶ 43). She added that a
number of “presumptive” positive tests had
occurred in the past and women with open cases were generally
allowed to leave with their newborns because CHFS did not get
involved until the test was confirmed with an umbilical cord
test. Id. Overhearing this, Defendant Kara pulled
Holly's night nurse aside in the hallway and rebuked her,
stating: “We are supposed to be working as a team, why
are you pitting them against me?” Id.
False Positive Revealed by Negative Subsequent
Kammer and Kara left, Holly's night nurse called St.
Elizabeth's lab and advised the Schulkers that St.
Elizabeth's uses a lower threshold level than required by
federal regulations. Id. at ¶ 45. Two hours
after signing the Prevention Plan, Holly's second urine
test results-this time conducted with a Drug of Abuse with
Reflex to Confirmation test-were returned as negative for any
illegal substances. Id. at ¶ 46; (Doc. 21-1 at
89-90). Holly's nurse at the time phoned Kammer and left
a voicemail. (Doc. 34, ¶ 46). However, staff at St.
Elizabeth's, including Defendant Cinque, refused to
discharge AMS. Id.
next morning, on February 11, 2017, Dr. James Otrembiak came
to check on AMS. He discussed the initial toxicology results
with the Schulkers and informed them that eating poppy seed
bagel chips could cause a false positive. Further, he
reported that on the previous day he had received a phone
call from a CHFS social worker, during which he advised that
there must have been a mistake with the initial drug screen.
Id. at ¶ 47. Indeed, Dr. Otrembiak later
AWAITING DISPOSITION FROM SOCIAL SERVICE. NO NOTE IN CHART .
. . Mom's repeat drug screen negative. Baby's cord
blood drug screen still pending. Mom states she took some
cough med[icine] prior to delivery and also had a bag of
Stacy[']s chips with Poppy seeds while in labor. She
showed me the bag! (poppy seeds, delsum, are among the
Products that can cause a false positive for opiates on drug
screen[)]. Planning on discharge tomorrow. Need final
disposition for discharge from social service.
(Doc. 21-2 at 8 (sealed)).
afternoon, at 1:32 p.m., St. Elizabeth's received the
umbilical cord toxicology results, which were also negative
for illegal substances. Twenty minutes later, a St. Elizabeth
social worker e-mailed Kammer the results from the umbilical
cord and Holly's second urine screen test. (Doc. 21-1 at
3); (Doc. 34, ¶ 48). Kammer confirmed to Holly she had
received both. (Doc. 34, ¶ 48).
both tests were negative for drugs, before AMS could be
discharged social services was required to approve the
discharge. (Doc. 34, ¶ 95). The Schulkers were permitted
to take their child home the following day, February 12, at
10:30 a.m. (Doc. 21-2 at 1); (Doc. 34, ¶ 53). A St.
Elizabeth social worker received a copy of the Child
Protective Services (“CPS”) discharge plan, and
noted that “Per CPS plan, [AMS] may discharge to
[Holly] under supervision of an approved supervisor. At this
time both Mary Schulkers and David Schulkers (spouse) are
approved supervisors.” (Doc. 34, ¶ 95); (Doc. 21-1
at 12-13); (Doc. 21-2 at 4-5).
The CHFS Investigation Continues
Monday morning, February 13, 2017, Holly called Kammer and
asked to be released from the Prevention Plan, to which
Kammer responded that she needed to talk to Campbell because
she was unsure how to proceed in the event of a false
positive drug test. Campbell refused to lift the Prevention
Plan. Consequently, David stayed home from work to
“supervise” Holly around the children. (Doc. 34,
¶ 54). The Schulkers decided it was time to contact an
attorney, who advised them to take a hair follicle drug test.
Id. at ¶ 55.
same day, Kammer and another CHFS employee interviewed the
Schulkers' four school-aged children- BOB (age 8), BRB
(age 9), EES (age 9), and EMS (age 13)- at their respective
schools without a warrant. Id. at ¶¶ 56,
98-103. Each child was removed from their classroom, brought
to a room where the door was then closed, and questioned
about, among other things, “mommy using drugs, ”
discord in the family, alcohol consumption, and other
personal family matters. Id. at ¶¶ 56-57,
100-01. During the interviews, school personnel were not
permitted in the room and the children were not free to leave
the room until released. The Schulkers only learned of these
events from their children when they returned home from
school crying. Id. at ¶¶
February 21, 2017, Holly's hair follicle drug test came
back negative. Id. at ¶¶ 55, 65; (Doc.
67-1, ¶ 10). Holly's attorney at the time e-mailed
the test results to CHFS staff, including Campbell and
Kammer. In addition, Holly's attorney informed Campbell
that Holly would no longer follow the Prevention Plan and
requested that it be formally lifted. (Doc. 34, ¶¶
65- 67); (Doc. 67-1, ¶ 10). At that time, Campbell
e-mailed her supervisor, Jessica Brown for guidance. Brown
agreed with Holly's attorney and explicitly advised
Campbell by phone to lift the Prevention Plan. Further, Brown
sent an e-mail to Campbell with instructions to respond to
Holly's attorney and inform her that the “negative
hair follicle test in conjunction with the other information
obtained supporting protective factors within the family
(collateral interviews, AOC checks, TWIST checks, interviews
etc.) warrant[s] lifting the supervision plan at this time.
We will be reaching out to the family to update our
prevention plan to reflect this change.” (Doc. 67-5,
Brown Dep. at 41-42). Campbell, however, chose not to
communicate this to the Schulkers.
month later, the Schulkers were still under the restrictions
of the Prevention Plan and CHFS's continuing
investigation. Repeated requests were made by counsel to
issue a finding of “unsubstantiated” and to close
the investigation, but each request was denied and the
Prevention Plan remained in effect. (Doc. 34, ¶¶
on April 7, 2017-nearly two-months after the Schulkers left
St. Elizabeth's-the case was labeled
“unsubstantiated.” The Schulkers were notified of
this by way of a letter in the mail, received on April 10,
which also informed them that the Prevention Plan was
terminated. (Doc. 67-1, ¶ 11); (Docs. 34, 69).
Throughout this time, there was no court order in place, nor
did CHFS seek such an order. (Doc. 34, ¶ 39).
filed this lawsuit on May 4, 2017, alleging, as relevant to
the CHFS defendants, claims for violations of the Fourth and
Fourteenth Amendments in relation to the imposition of the
Prevention Plan and the interviews of their children. They
allege that defendants carried out their actions in bad faith
so that they could obtain federal reimbursement funds
pursuant to Title IV-E, 42 U.S.C. § 672 et
seq.. (Doc. 34, Second Amended Compl. ¶ 70).
Plaintiffs assert that, under this provision, states are
eligible to receive reimbursement for the costs of a child
abuse investigation and other administrative costs when there
is a defined “Prevention Plan” in place under
which foster care of the planned arrangement for the child.
(Id.). The Schulkers allege that the CHFS defendants
initiated the investigation, imposed the Prevention Plan, and
prolonged the investigation in order to reap enhanced
benefits under Title IV-E.
defendant social workers are employed by the Commonwealth of
Kentucky, which is immune from suit in federal court under
the Eleventh Amendment. Nevertheless, they can be sued in
their individual capacities under 42 U.S.C. § 1983, if
they violated the plaintiffs' federally protected
constitutional or statutory rights. However, individuals such
as these defendants are entitled to qualified immunity, if
they can meet the criteria for that defense.
immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the
official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established' at the
time of the challenged conduct.” Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
recent decisions the Supreme Court has clarified what it
means for a legal right to be “clearly
established.” In White v. Pauly, 137 S.Ct. 548
(2017), the Court stated:
Qualified immunity attaches when an official's conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known. . . . While this Court's case law does not require
a case directly on point for a right to be clearly
established existing precedent must have placed the
statutory or constitutional question beyond debate. . .
. In other words, immunity protects all but the plainly
incompetent or those who knowingly violate the law.
Id. at 551 (citations and internal quotation marks
omitted) (emphasis added).
following term, the Court emphasized that a defendant
“cannot be said to have violated a clearly established
right unless the right's contours were sufficiently
definite that any reasonable official in the defendant's
shoes would have understood that he was violating it.”
Kinsela v. Hughes, 138 S.Ct. 1148, 1153 (2018)
(internal quotation marks and citation omitted). Thus, the
law of qualified immunity assumes that the defendant has
knowledge of existing law, or at least he or she is charged
therewith. See Harlow, 457 U.S. at 819 (“[A]
reasonably competent public official should know the law
governing [their] conduct.”).
Court thus must decide whether the CHFS defendants violated
plaintiffs' constitutional rights and, if so, whether
those rights were clearly established “beyond
The Prevention Plan
assert violations of their Fourteenth Amendment rights to
both substantive and procedural due process in ...