United States District Court, D. New Mexico
December 13, 2016
LeGINA THOMAS, TODD THOMAS, Plaintiffs,
Dr. MARY KAVEN, Ph.D., JILL STRAITS, and Dr. ANILLA DEL FABBRO, M.D., in their individual capacities, Defendants.
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
of early onset schizophrenia, borderline personality
disorder, or mental retardation. Pls.' Resp., UF ¶
64, ECF No. 101. Borderline personality disorder is not an
appropriate diagnosis for children under age 13. Id.
11:19 a.m., Dr. Del Fabbro changed MT's status on her
electronic medical charge from “Voluntary” to
“5-Day Hold.” Defs.' Ex. G, ECF No. 77-7. At
the time, a New Mexico statute was in effect that permitted
the involuntary placement of a child to residential care on
an emergency basis when the person seeking the placement
“believes that the child is likely to cause serious
bodily harm to self or to others during the period that would
be required to hold an involuntary placement hearing.”
N.M. Stat. Ann. § 32A-6A-22(N). It was Dr. Del
Fabbro's decision to place the medical hold on MT. Aff.
of Dr. Del Fabbro ¶ 19, ECF No. 44-1. Dr. Kaven and Dr.
Straits did not make the decision to place a medical hold on
MT on April 29, 2010, they did not place the medical hold on
MT, and they did not discuss with Dr. Del Fabbro the decision
to place the medical hold. Defs.' MSJ, UF ¶¶
24-25, ECF No. 77.
Hospital provides security for its patients, and while MT was
there she lacked access to weapons and instruments for
self-harm. Defs.' MSJ, UF ¶ 27, ECF No. 77. UNM
Hospital personnel monitored and observed MT during her stay.
See Id. Nevertheless, during the time period she was
on the medical hold, MT reported that a peer hit her.
See Pls.' Ex. 4 at 00232, ECF No. 102-8.
April 30, 2010, Ms. Straits called CYFD and reported that
Mrs. Thomas came to discharge MT against medical advice,
minimized and denied MT's symptoms, and refused to
consider medications to treat her symptoms of psychosis.
Pls.' Resp., UF ¶ 71, ECF No. 101. On May 3, 2010,
MT reported that she would be dead within two weeks if she
had to go home. Id., UF ¶ 72. On May 4, 2010,
MT reported that “these are the worst [suicidal
ideations] I have had since prior to admission; I am fit to
bust.” Pls.' Resp., UF ¶ 73, ECF No. 101.
Straits filed a petition for MT's involuntary commitment
on May 4, 2010 (“Petition”). Id., UF
¶ 74. Dr. Del Fabbro reviewed the Petition prior to it
being filed. Id. The Petition stated that MT suffers
from a mental disorder diagnosed as major depressive
disorder, recurrent severe with psychotic features, PTSD,
borderline traits. Pls.' Ex. 4 at 00396, ECF No. 102-8.
The Petition listed MT's symptoms as statements of
hopelessness; “I'm ready to die;” depression
and suicidality; history of cutting; complains she does not
feel alive; reports of auditory and visual hallucinations of
screaming, people dying around her, seeing a little girl when
she feels like cutting; feeling as if her parents and friends
control her; fragile sense of identity; stated she would kill
herself if she returned home; and dissociative symptoms.
Id. The Petition additionally stated that the
petitioners “Considered TFC-not covered by insurance.
Will not consider [outpatient] therapy given severity of
presenting symptoms, patient's consistent statements of
suicidality with a vague plan (razor knife), emotional
impulsivity. [MT] also requested an RTC placement
repeatedly.” Pls.' Resp., UF ¶ 75, ECF No.
101; Dep. of Dr. Del Fabbro 161:1-162:21, ECF No. 102-3. At
the time of the completion of the Petition, the hospital
staff would not consider outpatient therapy for MT because of
the severity of her presenting symptoms. Pls.' Resp., UF
¶ 76, ECF No. 101.
5, 2010, UNM Hospital received notice from Plaintiffs'
insurance carrier that MT's stay would no longer be
covered. See Dep. of Dr. Del Fabbro 146:24-147:5,
ECF No. 102-2. That same day, Ms. Straits called Mrs. Thomas
to inform her that she needed to pick up MT immediately
because insurance was no longer paying for MT's treatment
at UNM Hospital. See Aff. of LeGina Thomas ¶
24, ECF No. 13-5. On the evening of May 5, 2010, Ms. Straits
reported that she talked with MT about having a family
session to establish a safety plan and called Mrs. Thomas to
request a family session for Thursday or Friday to develop a
safety plan. Pls.' Resp., UF ¶ 77, ECF No. 101. Ms.
Straits called Mrs. Thomas on or about May 6, 2010, to tell
her that insurance would not cover Friday and she possibly
could still come get MT on Thursday for immediate discharge.
See Pls.' Ex. 4 at 00198, ECF No.
Fabbro released the medical hold on May 6, 2010 at 7:20 p.m.
prior to any court proceedings regarding the Petition.
See Pls.' Resp., UF ¶ 81, ECF No. 101. Dr.
Del Fabbro reported on MT's discharge paperwork that,
after the hold, Mrs. Thomas had talked to her husband and was
more open to working on a safety plan with the therapist and
that MT was discharged home with outpatient services.
See Defs.' Ex. B 188:22-189:18, ECF No. 77-2;
Defs.' Ex. H, ECF No. 77-8. Dr. Del Fabbro believed going
home was an appropriate option for MT at the time of her
discharge and was not concerned about MT's safety because
Mrs. Thomas had described several ways they were going to
address safety, such as locking away all guns, knives, and
medications; MT was going to keep a journal that mom would
check; MT was going to start seeing a therapist that she
could reach out to if she was having suicidal thoughts.
See Dep. of Del Fabbro 111:2-7, 115:5-25, ECF No.
102-2. Dr. Del Fabbro did not have first-hand knowledge where
the guns were kept either before her admission or at the time
of her discharge. Pls.' Resp., UF ¶ 65, ECF No. 101.
MT was discharged, Ms. Straits reported Plaintiffs had
engaged in abuse and neglect by refusing to consider
medications and refusing face-to-face appointments until the
discharge and mentioned Dr. Del Fabbro's medical hold as
support for the report. Id. ¶ 84. Dr. Kaven
completed an Incident Report after MT's discharge and
submitted it to the New Mexico Department of Health, claiming
that MT had been subjected to neglect because the parents
stated MT was lying and her suicidal ideation and
auditory/visual hallucinations were for attention only,
parents refused treatment with medication, and mother
discharged MT against medical advice. Id. ¶ 85.
Samuel Roll, Ph.D., licensed by the New Mexico Board of
Psychological Examiners in Clinical Psychology, conducted an
analytic review of MT's testing data. See Aff.
of Samuel Roll ¶¶ 3-7, ECF No. 102-9. He did not
conduct his own in-person evaluation of MT, but his review
included the psychological test data and evaluation, the
depositions of Dr. Kaven and Ms. Straits, and MT's
medical records. See Id. ¶¶ 6-7. Dr. Roll
opines that the psychological test data, as a whole, does not
support the diagnosis of major depressive disorder,
schizophrenia, or clinical suicidal potential. Id.
¶¶ 8(A)-(C). He further concludes that the
psychological test data, taken as a whole, are inconsistent
with forced hospitalization, admission to a residential
treatment center, or forced medication. Id. ¶
8(D). Dr. Roll acknowledged that in the M-PACI, a
self-reporting measure, MT endorsed a large number of items
consistent with depression, but that, based on a validity
measure in the report and MT's Rorschach test results,
including scores in the Depression Index in the normal range,
he believed the results as a whole were inconsistent with
depression. See Id. ¶ 8(A). In concluding that
MT's test results did not support forced hospitalization,
he relied in part on Dr. Kaven's statement in the M-PACI
Interpretative Report that “Supportive therapy will be
the best initial vehicle for treating this child.”
Id. ¶ 8(D). Dr. Roll also relied on the
following direct quotations of the test results made by Dr.
a. This person appears to have sufficient psychological
resources to cope adequately with the demands being imposed
on her by internal and external events in her life. As a
consequence, she can ordinarily manage the stresses in her
life without becoming unduly upset by them and is likely to
be relatively free from overt anxiety, tension, nervousness,
b. The client displays adaptive capacity to think logically
and coherently, and is, for the most part, as capable as most
people of this age of coming to reasonable conclusions about
relationships between events and of maintaining a connected
flow of associations in which ideas follow each other in a
c. This young person appears to have adequate abilities to
identify with real people in her life. This ability, if
combined with adequate opportunity to model herself after
real people she knows well, should facilitate a clear and
stable sense of her personal identity.
d. This person is more likely than most people of this age to
demonstrate generally adaptive interpersonal behavior most of
Id. ¶ 8(B). Dr. Roll concludes that Dr.
Kaven's overall assessment of “generally adaptive
interpersonal behavior most of the time” is
inconsistent with a need for forced hospitalization or
psychotropic medication. Id. ¶ 8(D).
sued under 42 U.S.C. § 1983, asserting that Defendants
violated their Fourteenth Amendment rights to direct their
child's medical care and to familial association.
Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir.
2014). Defendants filed a motion to dismiss based on absolute
and qualified immunity. Id. This Court granted the
motion to dismiss, holding that Defendants were entitled to
qualified immunity. Id.
appeal, the Tenth Circuit affirmed the dismissal of
Plaintiffs' right to direct medical care claim, but
reversed the dismissal of Plaintiffs' familial
association claim. Id. at 1198. With respect to the
familial association claim, the Tenth Circuit determined that
the “infringement on the Thomases' right to
familial association stemmed solely from the emergency
medical hold the defendants placed on M.T. prior to the
filing of the petition.” Id. at 1193. The
Tenth Circuit therefore limited its assessment of the
substantive due process claim to the placement of the medical
hold. Id. at 1195.
Tenth Circuit then set forth the elements necessary for
Plaintiffs to state a claim for deprivation of the right of
familial association: (1) Defendants intended to deprive
Plaintiffs of their protected relationship with their
daughter; and (2) balancing Plaintiffs' interest in their
protected relationship with their daughter against the
state's interest in her health and safety, Defendants
either unduly burdened Plaintiffs' protected
relationship, or effected an unwarranted intrusion into that
relationship. Id. at 1196. “In conducting this
balancing, the court will consider, among other things, the
severity of the infringement on the protected relationship,
the need for defendants' conduct, and possible
alternative courses of action.” Id.
Tenth Circuit concluded that the facts of the complaint
sufficiently stated a claim for deprivation of the right to
familial association because Dr. Del Fabbro's placement
of the medical hold on MT had the purpose and effect of
preventing Mrs. Thomas from removing MT from the hospital.
Id. The court determined that the complaint
sufficiently alleged that all defendants were involved in the
decision to retain custody of MT at the time. Id.
Tenth Circuit then turned to Defendants' argument that
they are entitled to qualified immunity because Plaintiffs
failed to show an immediate threat to MT's life did not
exist. Id. The Tenth Circuit reasoned as follows:
The scope of the right to familial association, at least in
the context of deprivation of parental custody in certain
circumstances, is clearly established. But at this stage in
the proceedings, we do not have the information necessary to
determine whether a state interest in M.T.'s health and
welfare existed such that it would have been justified for
the defendants to infringe upon the Thomases' right to
familial association. Whether the right to familial
association has been violated requires the court to conduct a
fact-intensive balancing test not ordinarily suitable for the
Rule 12(b)(6) stage. When the facts have not yet been fully
brought out through discovery, it is difficult for the court
to adequately conduct the relevant constitutional
The facts alleged in the Thomases' complaint, when
accepted as true and viewed in a light favorable to the
plaintiffs, do not show an immediate threat of suicide had
M.T. been discharged. The complaint does allege that suicidal
ideation was a basis for M.T.'s intake, diagnosis, and
course of treatment. But the complaint does not contain facts
showing M.T.'s suicide risk on April 29, the day the
defendants instituted the medical hold and allegedly violated
the plaintiffs' constitutional rights. Although the
complaint avers that M.T. expressed suicidal ideation on May
4, the complaint does not provide sufficient information or
context for determining the immediacy or seriousness of the
suicide threat during the course of the seven-day hold.
Moreover, the complaint alleges the defendants chose to
discharge M.T. because they determined her insurance would
not cover the involuntary commitment, and not because her
medical condition improved. Thus, to be able to adequately
determine whether officials of reasonable competence could
disagree as to the danger of discharging M.T., the court must
allow for some factual development of the record. The
defendants will be entitled to qualified immunity if
reasonable officers could at least disagree as to the danger
of discharging M.T.
Id. at 1196-97 (internal footnote omitted; italics
order to defeat the qualified immunity defense, the plaintiff
must both “demonstrate that the defendant's actions
violated a constitutional or statutory right” and
“show that the constitutional or statutory rights the
defendant allegedly violated were clearly established at the
time of the conduct at issue.” Archuleta v.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008) (emphasis
added). A court may exercise its discretion in deciding which
of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances of the case
before it. Pearson v. Callahan, 555 U.S. 223, 236
(2009). For a right to be clearly established under the
second prong, “[t]he contours of the right must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir.
1995) (quotation omitted). A plaintiff can demonstrate that a
constitutional right is clearly established by references to
on-point cases from the Supreme Court, the Tenth Circuit, or
the clearly established weight of authority from other
circuits. Archuleta, 523 F.3d at 1283.
summary judgment, the court must consider the evidence in the
light most favorable to the plaintiff when conducting the
qualified immunity analysis. Behrens v. Pelletier,
516 U.S. 299, 309 (1996). If the plaintiff carries his burden
on qualified immunity, the burden shifts to the defendant to
show that there are no genuine factual issues and she is
entitled to judgment as a matter of law. Albright,
51 F.3d at 1535.
Dr. Del Fabbro
Whether Dr. Del Fabbro violated Plaintiffs' liberty
interest in familial association
parental relationship is a constitutionally protected liberty
interest. Lowery v. County of Riley, 522 F.3d 1086,
1092 (10th Cir. 2008). To state a claim, Plaintiffs must show
that (1) Defendants intended to deprive them of their
protected relationship with MT, and (2) balancing
Plaintiffs' interest in that relationship against the
State's interest in MT's health and safety, Defendant
either unduly burdened Plaintiffs' protected relationship
or effected an unwarranted intrusion into that relationship.
Thomas, 765 F.3d at 1196. The Court will examine
each element in turn.
Intent to interfere
Defendants contend that the record establishes that Dr. Del
Fabbro acted with the intent to keep MT safe from self-harm,
not to interfere with the parental relationship. Dr. Del
Fabbro, however, clearly understood that placing the medical
hold on MT would prevent MT from leaving the hospital with
her parents, depriving them of their relationship with her.
Plaintiffs have thus met their burden to show that Dr. Del
Fabbro intended to deprive them of their protected
relationship in placing the medical hold on MT, the purpose
and effect of which was “to prevent Mrs. Thomas from
removing M.T. from the hospital.” Id. See also
Lowery, 522 F.3d at 1093 (quotation omitted) (“The
conduct or statement must be directed at the familial
relationship with knowledge that the statements or conduct
will adversely affect that relationship.”).
Balancing of interests
balancing the rights of parents and the State, the Court must
consider, among other things, the severity of the
infringement on the protected relationship, the need for
defendants' conduct, and possible alternative courses of
action. Thomas, 765 F.3d at 1196. As for the first
factor, denying a parent the care and custody of their child,
even temporarily, is a severe infringement on the protected
relationship and weighs strongly in favor of Plaintiffs.
Cf. PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1199
(10th Cir. 2010) (describing parents' interest in
associating with their child “unquestionably of
paramount importance” and explaining that forced
separation of parent from child, even for short time, is a
“serious impingement”). The fact that MT was
already in the custody and care of UNM Hospital, that
Plaintiffs signed a consent form acknowledging they were
informed of the process by and circumstances under which UNM
Hospital might institute involuntary commitment proceedings,
and that the hold was less than a week does not diminish the
seriousness of the impingement of preventing parents from
re-taking custody and care of their child. The Court
disagrees with Defendants that the intrusion in this case is
State, however, has a compelling interest to protect the life
and health of children within its borders. See Id.
at 1198. The Court must thus examine whether Plaintiffs have
shown a question of fact exists that the need for
Defendants' conduct was not sufficiently strong, and that
other medical actions short of a medical hold could be taken,
that would not justify infringement on the parental
relationship. Defendants rely significantly on the undisputed
fact that on April 28, 2010, the day before Dr. Del Fabbro
instituted the medical hold, MT stated an 8 out of 10 desire
to hurt herself and a 5 or 6 out of 10 to take her own life.
They also contend that MT's history of self-cutting,
reported prior suicidal thoughts and attempts, and fact that
MT's home had guns and knives added to the reasonableness
of Dr. Del Fabbro's belief that there was an immediate
need to protect MT's safety through a medical hold.
evidence in the record, construed in Plaintiffs' favor,
creates a genuine material issue of fact as to the immediacy
and need for the medical hold and indicates that alternative
courses of action were available. It is undisputed that on
May 4, 2010, MT reported that “these are the worst
[suicidal ideations] I have had since prior to admission; I
am fit to bust.” Nevertheless, the very next day, when
hospital staff learned MT's insurance would not cover her
continued involuntary stay, Ms. Straits called Mrs. Thomas to
have her pick up MT and on May 6, 2010, Dr. Del Fabbro
released the medical hold. Construing the facts in the light
most favorable to Plaintiffs, a jury could find that MT's
suicide risk on April 29, 2010 was the same or less than that
on May 4, 2010, yet Defendants did not believe the immediacy
and seriousness on the latter date justified a forced
separation of Plaintiffs from their child, once they learned
there were no pockets from which to pay for the stay. The
Tenth Circuit already indicated that these allegations were
significant in the analysis of determining whether the
suicide threat was of such immediate or serious nature to
justify the severe infringement. See Thomas, 765
F.3d at 1197 (“Moreover, the complaint alleges the
defendants chose to discharge M.T. because they determined
her insurance would not cover the involuntary commitment, and
not because her medical condition improved.”).
Plaintiffs have provided evidence from Dr. Roll that MT's
psychological evaluation did not support the diagnoses of
major depressive disorder or clinical suicidal potential or
the remedy of forced hospitalization. Specifically, he points
to Dr. Kaven's statements in the test results that MT
“appears to have sufficient psychological resources to
cope adequately with the demands being imposed on her by
internal and external events in her life” and “is
more likely than most people of this age to demonstrate
generally adaptive interpersonal behaviors most of the
time.” Aff. of Dr. Roll ¶¶ 8(B)(a) and (d),
ECF No. 102-9. He opines that Dr. Kaven's stated belief
that supportive therapy is the best treatment for MT
discredits their efforts for forced hospitalization.
Id. ¶ 8(D). The Court recognizes Defendants
have asserted multiple grounds upon which to test the
credibility of Dr. Roll and undermine the weight to give his
testimony, but at this stage, the Court must view in
Plaintiffs' favor his relevant opinions. This evidence
supports Plaintiffs' position that MT's comments on
April 29, 2010, when viewed in conjunction with her
psychological evaluation, were not a sufficiently credible
threat to support the medical hold. Cf. Roska ex rel.
Roska v. Peterson, 328 F.3d 1230, 1245-46 (10th Cir.
2003) (noting that “mere possibility” of danger
is not enough to justify removal of child from parents'
home without appropriate process and determining that
plaintiffs alleged violation of Fourteenth Amendment
procedural due process rights because facts showed emergency
circumstances did not exist to justify immediate removal from
home) (quoting with approval Tenenbaum v. Williams,
193 F.3d 581, 594 (2d Cir. 1999)).
the third factor in the balancing test, the record shows a
caring mother attempting to make the best treatment options
for her child, who investigated the treatment options
recommended by Dr. Del Fabbro, and who had reasonable grounds
for disagreeing with the proposed treatment of psychotropic
medications, as well as for believing her daughter might be
malingering. Mrs. Thomas told the medical team that the guns
in their home were locked up. Mrs. Thomas expressed her
openness to alternative medical treatments, before resorting
to medication. There is evidence that during the April 29,
2010 meeting with MT's doctors, Mrs. Thomas said she had
arranged for outpatient treatment and family therapy,
alternative treatments that Defendants found sufficient to
support releasing the medical hold - once they were informed
that Plaintiffs' insurance funds may have evaporated.
Viewing the record in Plaintiffs' favor, Defendants could
have pursued those alternative treatments on April 29, 2010,
instead of imposing the medical hold. Cf. Jensen,
603 F.3d at 1199 (holding that plaintiffs failed to show
defendant imposed an undue burden on their familial
relationship where state never physically removed child from
parents' custody and state afforded parents numerous
opportunities to obtain treatment for child before it sought
to remove him). The third factor thus supports
all the relevant evidence in Plaintiffs' favor, a jury
could find that there was no immediate need for the medical
hold, there were alternative courses of treatment, and the
balance of interests weighed against separating Plaintiffs
from their child. Accordingly, Plaintiffs have met their
burden on the first prong of the qualified immunity analysis
of demonstrating that questions of fact exist as to whether
Defendants violated their constitutional right to familial
association. See Thomas, 765 F.3d at 1196-97
(concluding that facts as alleged in complaint sufficiently
stated claim for deprivation of right to familial
association, even though complaint alleged suicidal ideation
was basis for MT's intake, diagnosis, and course of
treatment, because other allegations in complaint, construed
in plaintiffs' favor, did not show immediate threat of
suicide had MT been discharged).
Whether the constitutional right was clearly
not sufficient, however, to show only that a genuine issue of
material fact exists as to whether a constitutional violation
occurred. Defendants are entitled to qualified immunity
“if reasonable officers could at least disagree as to
the danger of discharging M.T.” Id. at 1197.
Accordingly, to overcome Defendants' qualified immunity
defense on summary judgment, Plaintiffs must show that the
record construed in their favor supports a conclusion that no
reasonable officer could disagree as to the danger of
scope of the right to familial association, at least in the
context of deprivation of parental custody in certain
circumstances, is clearly established.” Id. at
1196. At the time of the incident, it was clearly established
that Defendants could not place a medical hold that infringed
on a parent's right to the care and custody of their
child without an immediate health or safety risk to that
child. See Id. at 1197. Plaintiffs have shown
sufficient facts that undermine the purported immediacy of
the need to place a medical hold on MT and indicate that
Defendants' belief concerning the danger of releasing MT
was not sincerely held or reasonable. As discussed above,
there is a material factual issue concerning whether MT's
medical condition improved over the course of the hold or
whether MT's suicidal ideation remained unchanged and the
availability of insurance coverage was the only factor that
changed to cause Dr. Del Fabbro to reconsider her commitment
to forced hospitalization. A jury could find based on the
record that there was no immediate need to place a medical
hold on MT on April 29, 2010, and that Dr. Del Fabbro's
stated belief concerning the risk to MT upon discharge was
not sincerely or reasonably held on April 29, 2010. Although
qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law, ”
Anderson v. Creighton, 483 U.S. 635, 638 (1987)
(quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)), Dr. Roll's opinions also place the competence
and reasonableness of Dr. Del Fabbro's judgment at issue
as a factual matter. A jury could rely on his opinions and
the record to find that no reasonable official, considering
MT's entire medical record and medical history, would
find that MT was in sufficient immediate danger to require
forced hospitalization, rather than lesser intrusive
treatments. Defendants acknowledge that Dr. Roll's
opinions are “both disputed and material.”
Defs.' Reply 12, ECF No. 103. Although the objective
legal reasonableness of the official's actions is a legal
question, where the historical facts material to the issue
are in dispute, there is an issue for the jury.
Roska, 328 F.3d a 1251.
same reasons, Dr. Del Fabbro cannot rely on Section 32A-6A-22
of the New Mexico Children's Code, which allows the
involuntary placement of a child to residential care on an
emergency basis when the person seeking the placement
“believes that the child is likely to cause serious
bodily harm to self or to others.” N.M. Stat. Ann.
§ 32A-6A-22(N). The evidence construed in
Plaintiffs' favor suggests that Dr. Del Fabbro did not
sincerely believe that MT was likely to cause serious bodily
harm to herself, and that even if her belief was sincere, it
may not have been reasonable based on all the medical
evidence. The constitutional law was clear that an immediate
danger must exist to justify the forced separation of parent
from child. The statute would not have prevented Dr. Del
Fabbro from knowing that her actions in placing a medical
hold would be unconstitutional if she had no reasonably held
belief of an immediate danger to the child. Cf.
Roska, 328 F.3d at 1252 (stating that reliance on state
statute authorizing child's removal “alone could
not render the defendants' conduct objectively
reasonable, insofar as the statute did not authorize the
unconstitutional conduct in question”).
Court recognizes the difficult situation Dr. Del Fabbro
faced. At this stage, however, the Court must view all facts
and inferences in Plaintiffs' favor. A jury must resolve
the material disputes of fact that exist in this case.
Because the Court finds that there is evidence in the record
in favor of Plaintiffs that shows that Dr. Del Fabbro's
placement of the medical hold may not have been objectively
reasonable and that reasonable officials in her position
would have pursued an alternative remedy to forced
hospitalization, the Court will deny Defendant Del Fabbro
qualified immunity. See Thomas, 765 F.3d at 1196-97
(suggesting that if record on summary judgment showed that
there was no immediate threat of suicide on April 29, 2010,
law was clearly established that there was an insufficient
state interest in MT's health and welfare to justify
severe intrusion of forced separation of parent from child).
Cf. Suasnavas v. Stover, 196 F. App'x 647,
657-58 (10th Cir. Aug. 25, 2006) (in denying qualified
immunity on a motion to dismiss, explaining that factual
question of whether defendants had reasonable suspicion that
step-grandfather posed threat to his grandchildren must be
explored in depth); Roska, 328 F.3d at 1250 (denying
qualified immunity on Fourteenth Amendment familial
association claim to social workers who removed child from
home because they suspected his mother had Munchausen
Syndrome by Proxy and was inflicting physical harm on her
child, because record showed child's health and safety
were not in immediate danger).
Dr. Kaven and Ms. Straits
liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.”
Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.
1997). The question is whether the defendant personally
participated in the “specific constitutional violation
complained of.” Henry v. Storey, 658 F.3d
1235, 1241 (10th Cir. 2011). An official who causes a citizen
to be deprived of his constitutional rights can be held
liable if the official set in motion a series of events that
he or she knew or reasonably should have known would cause
others to violate a citizen's constitutional rights.
Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990)
(quoting Conner v. Reinhard, 847 F.2d 384, 396-97
(7th Cir. 1988)). Defendants Kaven and Straits argue they are
entitled to summary judgment because they had no personal
participation in the specific constitutional violation about
which Plaintiffs complain, i.e., placement of the medical
hold. Plaintiffs contend that Defendants Kaven and Straits
participated in the constitutional violation by creating some
of the medical records and reports upon which Dr. Del Fabbro
relied and by preparing the paperwork for the hold and the
later charges of neglect made to the State. See
Pls.' Resp. ¶ 23, ECF No. 101.
undisputed that Dr. Del Fabbro solely made the decision to
place the medical hold on MT, and in doing so, did not rely
on the psychological evaluation of Dr. Kaven and Ms. Straits.
Consequently, even if Dr. Kaven and Ms. Straits'
psychological evaluation misdiagnosed depression, clinical
suicidal potential, and schizophrenia, those actions did not
cause the constitutional injury of which Plaintiffs complain.
The record shows that Dr. Kaven and Ms. Straits were part of
MT's medical team; they discussed their concerns about
Mrs. Thomas' refusal to allow administration of SSRIs and
her disagreements with the team's diagnosis and treatment
among themselves and Dr. Del Fabbro; and they were present
when Dr. Del Fabbro told Mrs. Thomas that she had chosen to
put a hold on MT. That evidence, however, does not establish
that Dr. Kaven and Ms. Straits set in motion the events that
would cause Dr. Del Fabbro to violate Plaintiffs' rights
by placing the initial medical hold or that they knew or
reasonably should have known that their actions would cause
the hold. Cf. Henry, 658 F.3d at 1241 (explaining
that personal participation in specific asserted
constitutional violation is essential and holding that
officer, even though she eventually participated in
plaintiff's detention, did not herself engage in
there is no evidence indicating Ms. Straits' actions in
contacting CYFD to complain about the Thomases' alleged
medical neglect and helping file the Petition caused Dr. Del
Fabbro to place the medical hold on MT. The Tenth Circuit
expressly limited the claim to the placement of the medical
hold, not seeking an involuntary residential treatment order
in state court. Thomas, 765 F.3d at 1195. Nor is
there any evidence in the record suggesting that Dr. Del
Fabbro would have immediately abandoned her decision to place
or continue with the medical hold had Defendants Kaven and
Straits voiced objections to that hold. Accordingly,
Defendants Kaven and Straits are entitled to summary judgment
and will be dismissed from the case for lack of personal
participation in the placement of the medical hold.
THEREFORE ORDERED that Defendants' Second Motion for
Summary Judgment and Supporting Brief (ECF No. 77) is GRANTED
IN PART AND DENIED IN PART as follows:
Defendants' motion for summary judgment is GRANTED as to
Defendant Mary Kaven, Ph.D. and as to Defendant Jill Straits.
Defendant Mary Kaven, Ph.D. and Defendant Jill Straits are
DISMISSED WITH PREJUDICE from the case.
Defendants' motion for summary judgment is DENIED as to
Defendant Anilla Del Fabbro, M.D.
 Jill Straits is now Dr. Straits, but
the Court will refer to her as Ms. Straits because at the
time of the incident, she did not have that title.
 The cited portion of the record does
not exactly state what Plaintiff asserts, but because
Defendants did not challenge the fact, the Court will accept
it as undisputed for purposes of the motion. See
Pls.' Ex. 4 at 00203, ECF No. 102-8 (stating that patient
reported, “I'd rather go to RTC because if I go
home, it will be good for a week and then I'll want to
kill myself again” and listing April 30, 2010 as date
 Defendants argue that Plaintiffs have
not shown with admissible evidence that their insurance
company ever denied coverage for MT's stay beyond May 6,
2010, or threatened to do so, and attached medical records
showing that Plaintiffs' insurer provided coverage
through May 6, 2010. Defs.' Reply 11-12, ECF No. 103, and
Defs.' Ex. A, ECF No. 103-1. The Court finds that
Plaintiffs provided admissible evidence through Mrs.
Thomas' Affidavit, Dr. Del Fabbro's deposition, and
MT's medical records demonstrating, when inferences are
construed in their favor, that UNM Hospital and Ms. Straits
were informed that Plaintiffs' insurer would not provide
continued coverage for MT's continued involuntary
commitment and that Ms. Straits told Mrs. Thomas that her
insurance would not cover MT's stay and that she needed
to pick up MT. The Court finds that Plaintiffs' evidence
creates a factual dispute as to whether the medical team
released the medical hold, not because MT's medical
condition improved, but because they believed her insurer
might not cover her involuntary commitment after May 6,