United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on the Second Motion for
Summary Judgment and Supporting Brief (ECF No. 77) filed by
Defendants Dr. Mary Kaven, Ph.D., Jill Straits, and Dr.
Anilla Del Fabbro, M.D., (collectively,
“Defendants”), with regard to Plaintiffs'
Fourteenth Amendment familial association claim. The Court,
having considered the motion, briefs, evidence, and
applicable law, concludes that Defendants' motion should
be granted as to Defendants Kaven and Straits for lack of
personal participation in the specific constitutional
violation complained of, but the motion should be denied as
to Defendant Del Fabbro.
April 12, 2010, Plaintiffs reported a possible sexual assault
involving their 12-year-old daughter “MT” to the
Lea County Sheriff's Department (“LCSD”).
Defs.' Second Mot. for Summ. J. (hereinafter
“MSJ”), Undisputed Fact (“UF”) ¶
1, ECF No. 77. During the investigation, MT told an officer
that she wanted to injure herself. Aff. of LeGina Thomas
¶ 4, ECF No. 13-5. An LCSD screening officer completed a
Suicide Prevention Screening Guidelines form from Nor-Lea
General Hospital, recording that MT feels that there is a
“threatening environment at home, ” MT had
received prior psychiatric counseling, MT showed signs of
depression, and MT did not have previous suicide attempts.
See Defs.' Ex. A, ECF No. 77-1.
evaluated at Nor-Lea General Hospital. Aff. of LeGina Thomas
¶¶ 4-5, ECF No. 13-5. On April 13, 2010, Dr. Ronald
D. Hopkins from Nor-Lea Hospital requested a seven-day
emergency evaluation for psychiatric hospitalization at the
University of New Mexico Children's Psychiatric Center
(hereinafter “UNM Hospital”) for MT. See
Pls.' Resp., UF ¶ 33, ECF No. 101. The Children,
Youth, and Family Department (“CYFD”) also
investigated and told LeGina Thomas that if she did not agree
to transfer her daughter to UNM Hospital for a mental health
evaluation, CYFD would take custody of MT. Aff. of LeGina
Thomas ¶ 6, ECF No. 13-5.
admitted to UNM Hospital on April 13, 2010. Pls.' Resp.,
UF ¶ 34, ECF No. 101. At the time of MT's admission,
UNM Hospital provided children with acute, inpatient mental
health services. Defs.' MSJ, UF ¶ 4, ECF No. 77. In
admitting her daughter on April 13, 2010, Mrs. Thomas agreed
that MT would receive a mental health evaluation and
participate in treatment programs based upon a determination
of her individual needs. Voluntary Consent Form, ECF No.
44-2. The Voluntary Consent form notified Mrs. Thomas that
she had the right to request an immediate discharge of her
child from the treatment program at any time, but if she did
and if a licensed psychologist or director of the residential
treatment program determined that her child needed continued
treatment, on the first business day following the discharge
request, the children's court attorney or district
attorney may begin involuntary commitment proceedings.
Id. By signing the form, Mrs. Thomas acknowledged
that she understood that, if involuntary commitment
proceedings were filed, her child had a right to a court
hearing within seven days after the request for discharge.
Id. At the time of her admission, MT's estimated
length of stay was 3-5 days. Pl.'s Ex. 4 00167, ECF No.
Anilla Del Fabbro is a medical doctor licensed in the State
of New Mexico and was MT's treating psychiatrist during
the time MT was at UNM Hospital. Defs.' MSJ, UF ¶ 9,
ECF No. 77. Dr. Del Fabbro knew that CYFD wanted a
psychiatric evaluation of MT. Pls.' Resp., UF ¶ 54,
ECF No. 101.
Hospital follows a “medical model” for treatment
in which Dr. Del Fabbro was the attending physician who held
the authority for patient treatment, diagnosis, prescribing
medications, and authority over the patient's release.
Id. UF ¶ 8. During MT's stay at UNM
Hospital, Mary Kaven, PhD., was a licensed clinical
psychologist, and Jill Straits was an intern and therapist in
the UNM psychology department. Id. UF ¶¶
10-11; Dep. of Dr. Kaven 28:3-5, ECF No. 102-4. Ms. Straits was
not at the time licensed. Dep. of Dr. Kaven 29:13-19, ECF No.
102-4. Dr. Kaven was Ms. Straits' clinical supervisor and
was responsible for Ms. Straits' interventions and work.
Dep. of Dr. Kaven 28:3-5, ECF No. 102-4, and 78:6-7, ECF No.
102-5. They were part of MT's treatment team and attended
meetings where there was verbal input and discussion among
team members. See Id. 29:13-19, ECF No. 102-4. Ms.
Straits' role on MT's treatment team was to provide
therapy intervention. Dep. of Jill Straits 10:4-6, ECF No.
102-6. UNM Hospital also assigned a case manager to MT who,
after Dr. Del Fabbro made treatment decisions, would follow
through on availability of treatments and make appointments
as needed. See Dep. of Dr. Kaven 15:7-21, ECF No.
102-4. Prior to April 14, 2010, Dr. Del Fabbro had never seen
or treated MT, nor had any of the Defendants had any prior
contact with MT, her parents, CYFD, Nor-Lea General Hospital,
or LCSD regarding MT. Defs.' MSJ, UF ¶ 7, ECF No.
her intake at UNM Hospital, MT underwent a physical
evaluation that revealed scarring on her thighs and wrists,
which MT attributed to her history of cutting and
self-mutilation. Id., UF ¶ 12. MT's medical
report indicates that Mrs. Thomas reported at some point that
one of the scars on MT's arm was from opening a box with
a knife that slipped and cut her, which was why Mrs. Thomas
did not believe MT was telling the truth about cutting.
See Pls.' Ex. 4 at 00206, ECF No. 102-7.
April 14, 2010, Dr. Del Fabbro performed an evaluation of MT.
Id. UF ¶ 13. From information attained through
MT's admission history and the course of the assessment,
Dr. Del Fabbro understood that MT had reported the following:
she had suicidal thoughts, her parents butt in too much, she
attempted suicide twice in the past, she had a history of
cutting and self-mutilation, she did not feel safe going
home, she was going to kill herself, and there were guns in
the home that were not locked up. See Defs.' Ex.
F 000008-09, ECF No. 77-6; Behavioral Health Notes 239, ECF
No. 13-6. Mrs. Thomas reported that the guns were locked up.
same day, on April 14, 2010, Dr. Del Fabbro first recommended
to Mrs. Thomas that MT take a selective serotonin reuptake
inhibitor (“SSRI”), a psychotropic medication, to
treat MT's depression, despite that the psychological
evaluation had not yet been administered. See Dep.
of Dr. Del Fabbro 70:15-20, ECF No. 102-1; Aff. of LeGina
Thomas ¶¶ 9-10, ECF No. 13-5; Pls.' Ex. 4 at
00228, ECF No. 102-8. Dr. Del Fabbro advised Mrs. Thomas that
she believed MT was depressed, likely schizophrenic, and
experiencing visual and auditory hallucinations. Aff. of
LeGina Thomas ¶¶ 9-10, ECF No. 13-5. Dr. Del
Fabbro's assessment that MT was experiencing
hallucinations was solely based on MT's reports to her
and other staff. Dep. of Dr. Del Fabbro 64:1-65:5, ECF No.
102-1. Mrs. Thomas was alarmed by MT's suicidal
ideations, but also thought she may have been stating she was
suicidal to avoid repercussions for what may have been her
sexually inappropriate activity, and she repeatedly advised
UNM Hospital staff of that possibility. Aff. of LeGina Thomas
¶¶ 8, 12, ECF No. 13-5.
Fabbro explained that the SSRI would help with MT's poor
grades and behavioral issues at school, but Mrs. Thomas
responded that MT did not have any behavioral issues and was
doing well in school. Id. ¶¶ 10-11. Mrs.
Thomas reiterated that MT had not reported any hallucinations
until confronted about the sexual incident, and she stated
that did not give permission to administer SSRIs and wanted
to explore other treatment options, including counseling
before resorting to psychotropic medication. Id.
¶¶ 12-13. Dr. Del Fabbro was troubled by Mrs.
Thomas not being open to discussion about the administration
of SSRIs to MT. See Dep. of Dr. Del Fabbro
74:13-75:14, ECF No. 102-1; Pls.' Ex. 4 at 00207, 00221,
00228, ECF No. 102-7; Defs.' Ex. F 000011, ECF No. 77-6.
Dr. Del Fabbro nonetheless viewed Mrs. Thomas as a caring
mother and believed that she was concerned about MT's
suicidal ideation. Dep. of Dr. Del Fabbro 85:24-86:8, ECF No.
about April 14, 2010, Mrs. Thomas told Ms. Straits that she
was refusing all medications for MT for three main reasons:
studies on antidepressants concluding an increase in risk for
suicidality, patient's history of being a
“hypochondriac, ” and her own belief that therapy
or other avenues of treatment should be tried first.
See Pls.' Ex. 4 at 00221, ECF No. 102-8.
April 16, 2010, Dr. Del Fabbro called Mrs. Thomas to express
her concern that MT reported experiencing visual and auditory
hallucinations for years and to recommend MT start taking
SSRIs. Aff. of LeGina Thomas ¶ 15, ECF No. 13-5. Mrs.
Thomas again refused, because her research of SSRIs on the
internet revealed they carry a black box warning from the
Food and Drug Administration and are known to increase
suicidal thoughts and behaviors in children and adolescents.
See Id. ¶¶ 14-16. Mrs. Thomas explained
her reasons for the refusal, including her concerns about the
black box warnings and malingering. See Id. ¶
16. Mrs. Thomas stated that if she were to become confident
in the diagnoses and other less drastic treatment options
were exhausted, she would consider authorizing psychotropic
medication. Id. Dr. Del Fabbro was aware of the
black box warning about an increase in suicidal ideation for
individuals as young as MT. See Dep. of Dr. Del
Fabbro 96:17-24, ECF No. 102-2.
Fabbro ordered psychological testing of MT, and Dr. Kaven and
Ms. Straits performed the psychological assessment.
See Dep. of Dr. Kaven 29:13-19, ECF No. 102-4. Dr.
Kaven interviewed MT twice as part of the psychological
evaluation, and those two times were the only times she spoke
to MT. Id. 47:10-22. Afterwards, Dr. Del
Fabbro's role was to review the assessment. See
Dep. of Dr. Del Fabbro 25:7-17, ECF No. 102-1.
April 21, 2010, Ms. Straits told Mrs. Thomas that MT might be
mentally retarded. Aff. of LeGina Thomas ¶ 17, ECF No.
13-5. Mrs. Thomas replied that she was surprised because MT
had been in gifted classes. Id. ¶ 18. Indeed,
Dr. Kaven had not conducted intellectual or achievement
testing because it was clear MT was very smart. Dep. of Dr.
Kaven 87:16-22, ECF No. 102-5. Mrs. Thomas also reported to
Dr. Del Fabbro that MT was gifted and received A's and
B's in school. Dep. of Dr. Del Fabbro 77:17-20, 81:
19-24, ECF No. 102-1.
April 27, 2010, Ms. Straits spoke to a CYFD investigator to
give an update on her concerns regarding MT's parents and
reported that they did not believe she was actually suicidal,
disagreed with professional recommendations, would not
consider any medications despite psychiatrist's
recommendations, and might not, despite their initial
agreement, follow through with RTC placement. See
Dep. of Dr. Kaven 98:20-99:11, ECF No. 102-5; Pl.'s Ex. 4
at 00211, ECF No. 102-8.
her April 13, 2010 admission and April 28, 2010, MT remained
in treatment at UNM Hospital. Defs.' MSJ, UF ¶ 15,
ECF No. 77. At some point during MT's stay, Mrs. Thomas
told the hospital staff that she would consider placing MT in
a residential treatment facility. See Pls.'
Resp., UF ¶ 63, ECF No. 101.
April 28, 2010, Mrs. Thomas advised UNM Hospital that she
intended to remove MT from the facility against the
staff's medical advice. See Defs.' MSJ, UF
¶ 16, ECF No. 77. An April 28, 2010 therapy note in
MT's medical chart from UNM Hospital stated:
Patient reported that, if she were to go home, [the scale of
her suicidal ideation] would be at ¶ 8 and she was at
¶ 10 as far as likelihood of hurting herself: “I
would grab a knife, grab a razor, and I would hurt
myself.” Patient stated that she was at ¶ 5 or 6
for wanting to kill herself if she went home, stating
“I'm ready to give up my life.” She denied
having a plan, stating that “when I get into that
moment, the thoughts come to me and that's what I would
do.” . . . When asked about her feeling of being
“dead, ” patient reported that it was at ¶ 6
right now, and if she were with her parents it would be at
¶ 10 still.
Id., UF ¶ 18.
Kaven, however, stated in her medical notes for April 29,
2010, that MT reported that her mother told her the prior
night that she was going home; MT said she was happy and
denied suicidality; MT said her mother had told her she set
up an appointment with a doctor and a therapist, MT would be
home schooled, and they were going to go to family therapy;
and MT was smiling and appeared excited. Pls.' Resp., UF
¶¶ 68, 87, ECF No. 101.
April 29, 2010, Mrs. Thomas met in person with Dr. Del
Fabbro, Dr. Kaven, and Ms. Straits to discuss the results of
MT's psychological testing. Aff. of LeGina Thomas ¶
21, ECF No. 13-5; Dep. of Dr. Kaven 71:3-23, ECF No. 102-5.
During the meeting, Mrs. Thomas continued to express her
beliefs that her daughter was lying about suicidal ideation
and hallucinations to avoid punishment and that she was
uncomfortable with medications. Dep. of Dr. Kaven 72:7-19,
ECF No. 102-5. Mrs. Thomas told Dr. Del Fabbro that she had
made arrangements for outpatient services for MT in
Lovington, New Mexico. See Pls.' Resp., UF
¶¶ 67, 91, ECF No. 101. Dr. Kaven reported that day
that Mrs. Thomas cared about her daughter, was concerned for
her well-being, and was trying very hard to make decisions
that she believed to be in MT's best interest.
See Pls.' Ex. 4 at 00207, ECF No. 102-7. Dr.
Kaven wrote that Mrs. Thomas also appeared to understand what
treatment team members were saying, but lacked openness to
professional advice and placed more trust in the advice of
online forums and in her own ability to assess MT's
psychiatric symptoms and risk for self-harm. See Id.
Dr. Del Fabbro nevertheless told Mrs. Thomas that she was
taking emergency medical custody of MT because she did not
believe Mrs. Thomas was competent to make medical decisions
on her behalf and she had continued discomfort with discharge
to regular outpatient services at the time due to MT's
mental status. See Aff. of LeGina Thomas ¶ 23,
ECF No. 13-5; Pls.' UF ¶ 91, ECF No. 101.
April 29, 2010, Dr. Del Fabbro placed an involuntary medical
hold on MT, asserting that she did so for the safety of MT
based on MT's statement that she was going to kill
herself if she were to go home. See Aff. of Anilla
Del Fabbro, M.D., ¶¶ 17-21, ECF No. 44-1; Dep. of
Dr. Del Fabbro 38:20-24, ECF No. 77-2. In making her
decision, Dr. Del Fabbro relied on input from various
sources, including her assessment of MT and family dynamics,
MT's history, her assessment of other people who
interacted with MT and other professionals involved in her
care, and her knowledge that a child who has self-harm or
cutting behavior is at very high risk for suicidality.
See Dep. of Dr. Del Fabbro 46:5-47:7, ECF No. 77-2
and 45:5-25, ECF No. 102-1. Dr. Del Fabbro did not rely on
MT's psychological evaluation. See Dep. of Dr.
Del Fabbro 45:17-25, ECF No. 102-1. Dr. Del Fabbro's
stated reasons for placing the medical hold on MT were that
MT said she was suicidal; she had a diagnosis of depression,
a diagnosis which her auditory and visual hallucinations
supported; there were guns in the home; MT stated she would
kill herself by any means possible; there was discord at
home; a child who is using self-harm is a predictor of
subsequent suicidal ideation or following through with a
plan; there was no outpatient provider in place; and Mrs.
Thomas was not open at the time to discussing and dismissive
of MT's suicidal ideation and other symptoms. See
Fabbro knew that MT had seen a counselor in the past, but
never contacted MT's counselor and did not know whether
MT saw the counselor for depression. See Dep. of Dr.
Del Fabbro 76:15-77:11, 80:10-24, 112:3-21, ECF Nos. 102-1 to
102-2. Dr. Del Fabbro understood that MT was not seeing a
counselor just prior to her admission. Id. 112:3-6,
ECF No. 102-2. Dr. Del Fabbro concluded MT had a history of
depression based on MT's reports that she had been
depressed after her adoption by her stepdad, that it is
common in children for a change to lead to anxiety or
depression, and that there had been a need for counseling.
See Id. 76:15-77:11, 112:3-21, ECF Nos. 102-1 to
102-2. Dr. Del Fabbro agreed with the diagnosis for MT of
major depressive order, but did not agree with any diagnosis