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Schulkers v. Kammer

United States District Court, E.D. Kentucky, Northern Division, Covington

February 8, 2019




         This 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).

         After further study, the Court now issues the following Memorandum Opinion and Order.

         Factual and Procedural Background [1]

         On 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, [2]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).

         Holly gave birth to AMS without complications on February 9, 2017. (Doc. 21-2 at 12-13).[3] 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.

         A short 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).[4]

         Before 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, [5] 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).[6] 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”[7] for “testing positive for medication not prescribed to her” and assigned the case to Defendant Alison Campbell. (Doc. 67-3 at 3).

         Later 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).

         A. “The Prevention Plan”

         On the 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).[8] After this call, Kammer presented the Schulkers with a predominately handwritten “Prevention Plan.” (Doc. 67-9 (sealed)).

         The 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).

         Holly's 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).[9] 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.

         B. False Positive Revealed by Negative Subsequent Testing

         After 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.

         The 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 charted:

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)).

         That 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).

         Although 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).

         C. The CHFS Investigation Continues

         On 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.

         That 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 ¶¶ 56-58.[10]

         On 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.

         Over a 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, ¶¶ 66-67, 69).

         Finally, 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).

         Plaintiffs 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.


         The 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.

         “Qualified 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)).

         In 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).

         The 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.”).

         This Court thus must decide whether the CHFS defendants violated plaintiffs' constitutional rights and, if so, whether those rights were clearly established “beyond debate.”

         A. The Prevention Plan

         Plaintiffs assert violations of their Fourteenth Amendment rights to both substantive and procedural due process in ...

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