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Thomas v. Kaven

United States District Court, D. New Mexico

December 13, 2016

Dr. MARY KAVEN, Ph.D., JILL STRAITS, and Dr. ANILLA DEL FABBRO, M.D., in their individual capacities, Defendants.


         This 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.


         On 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.

         MT was 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.

         MT was 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. 102-7.

         Dr. 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.

         UNM 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.[1] 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. 77.

         During 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.

         On 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. See id.

         That 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.

         Dr. Del 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. 102-1.

         On or 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.

         On 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.

         Dr. Del 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.

         On 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.

         On 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.

         Between 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.

         On 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.

         Dr. 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.

         On 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.

         On 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 Id. 67:8-68:24.

         Dr. Del 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 of ...

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