United States District Court, D. New Mexico
DONNA EVERHART and HARLEY EVERHART, individually and as next of friend for S.E. BOY and S.E. GIRL, minor children, Plaintiffs,
DETECTIVE JOHN DOMINGUEZ; DETECTIVE MARK MONROE; CITY OF HOBBS; CITY OF HOBBS POLICE DEPARTMENT; STATE OF NEW MEXICO CHILDREN, YOUTH, AND FAMILIES DEPARTMENT; and DANA BECKER, employee and supervisor for Children, Youth, and Families Department, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
matter is before the Court on the Motion of Defendant
Children, Youth, and Families Department to Dismiss
Plaintiffs' Claims of Punitive Damages (Doc. 19), and on
Defendant Dana Becker's Motion to Dismiss Plaintiffs'
First Amended Complaint (Doc. 20), both filed on January 12,
2018. Jurisdiction arises under 28 U.S.C. § 1331. Having
considered the submissions of counsel and the relevant law,
the Court will GRANT both motions.
Donna and Harley Everhart have three children together. After
their oldest son sexually abused their younger son,
Plaintiffs admitted to charges filed in an Abuse and Neglect
Petition, and Defendant Children, Youth, and Families
Department (CYFD) took physical and legal custody over
Plaintiffs' children. Plaintiffs later entered into a
treatment plan with CYFD to work toward reunification with
their children. Despite Plaintiffs' completion of all
terms of the treatment plan, CYFD decided it was not in the
best interests of the children to be reunified with their
parents. Over five years after Plaintiffs lost custody of
their children, a state court terminated their parental
rights. Plaintiffs appealed, and the New Mexico Court of
Appeals overturned the state court's decision. Plaintiffs
now bring claims for violations of their federal and state
constitutional rights and under state common law.
are the parents of three children. (Am. Compl. ¶¶
3, 15.) On June 15, 2010, an Abuse and Neglect Petition was
filed against Plaintiffs, “alleging that they failed to
supervise and protect their minor children pursuant to”
N.M. Stat. Ann. §§ 32A-4-2(B)(1), 32A-4-2(G)(2)
(2005). (Id. ¶ 12.) A criminal complaint was
filed in state court against Plaintiffs' oldest son,
“H.E. Jr., ” “alleging criminal sexual
contact and criminal sexual penetration with”
Plaintiffs' middle child, “S.E. Boy.”
(Id. ¶ 15.) Plaintiffs admitted to the
allegations in and pled no contest to the Abuse and Neglect
Petition, and their oldest son admitted to the allegations in
the criminal complaint. (Id. ¶¶ 13, 16.)
H.E. Jr. “was sentenced as a juvenile offender.”
(Id. ¶ 16.) CYFD took physical and legal
custody over S.E. Boy and Plaintiffs' daughter,
“S.E. Girl.” (Id. ¶ 14.)
CYFD took custody of Plaintiffs' two youngest children,
CYFD and Plaintiffs entered into a treatment plan created to
facilitate the reunification of Plaintiffs, S.E. Boy, and
S.E. Girl. (Id. ¶ 20.) See also N.M.
Stat. Ann. § 32A-4-22(C). Plaintiffs completed all
requirements contained in the treatment plan, including
parenting classes, counseling classes, marriage classes, and
psychological counseling. (Am. Compl. ¶ 21.) Dr. Will
Parsons performed a psychological evaluation of Plaintiffs
and concluded that they “were suitable for
reunification.” (Id. ¶ 22.) During this
time and through July 2011, Plaintiffs were allowed
supervised visits with S.E. Boy and S.E. Girl. (Id.
¶ 23.) At some point in July 2011, Detective John
Dominguez of the Hobbs Police Department reported to CYFD
that “Plaintiffs possibly had child pornography on
their computer.” (Id. ¶ 27.) While
Detective Mark Monroe of the Hobbs Police Department
“testified that he could not identify who was
responsible for any child pornography” contained on the
computer at Plaintiffs' home, the state court
“discontinued the visitation plan and
reunification” proceedings. (Id. ¶¶
28-29.) CYFD subsequently “changed its recommendation
to termination of parental rights of the Plaintiffs on or
about September 26, 2011.” (Id. ¶ 31.)
S.E. Boy spent two years at Peak Treatment Center in Roswell,
New Mexico, where he participated “in a sex club with
other minors . . . .” (Id. ¶¶
35-36.) S.E. Boy currently resides at a treatment facility in
San Marcos, Texas.” (Id. 33.) Plaintiffs only
saw S.E. Boy twice while he was in Roswell, and they have
been unable to visit him since that time. (Id.
¶¶ 37, 39.)
Girl has been in at least three foster homes and two adoptive
home placements since June 2010. (Id. ¶¶
42, 46-47, 58.) Plaintiffs have not seen S.E. Girl since July
17, 2011. (Id. ¶ 42.) After the first
prospective adoptive parents withdrew consent for adoption in
2012, CYFD informed the state court that it would renew the
reunification plan with Plaintiffs. (Id.
¶¶ 47, 49.) The state court appointed Ted
Woolridge, a “clinical psychologist, to facilitate and
oversee the reunification program . . . .”
(Id. ¶ 50.) Plaintiffs again completed the
requirements of the reunification program and treatment plan.
(Id. ¶¶ 51-53.) Plaintiffs were still not
allowed visitation with either of their two youngest
children, and the reunification plan “was a complete
failure” because Mr. Woolridge “did not
coordinate the reunification plan with the therapists and
Plaintiffs.” (Id. ¶¶ 54, 57.)
2014, CYFD found a second prospective adoptive placement for
S.E. Girl and recommended again that the state court
terminate Plaintiffs' parental rights. (Id.
¶ 58.) On January 15, 2015, the state court ordered a
Permanency Plan for Termination. (Id. ¶ 59.)
Before the state court entered this order, it ordered
Plaintiffs to undergo a psychological evaluation.
(Id. ¶ 61.) CYFD refused to pay for the
evaluation, so Plaintiffs paid for and completed the
court-ordered evaluation. (Id. ¶ 64.)
Psychologist Mark Caplan found “no outstanding
psychological diagnosis [that] would prevent reunification .
. . .” (Id. ¶ 65.) Dr. Caplan further
found that CYFD “had damaged the relationship of the
minor children with the Plaintiffs[, ] . . . that S.E. [Boy]
had suffered damages and physical abuse while in the care,
custody and control of” CYFD, and that S.E. Girl
“had suffered damages as a result of” the
disintegrated familial bond with Plaintiffs. (Id.
¶¶ 65-68.) Dr. Caplan recommended the state court
enter the reunification plan, but CYFD continued to refuse
visitations. (Id. ¶ 69.)
“has missed statutory deadlines for review hearings,
dispositional hearings, permanency hearings, and termination
of parental rights hearings” pursuant to N.M. Stat.
Ann. §32A-4-22. (Id. ¶ 70.) During one
unidentified court hearing, Ms. Dana Becker, a social worker
and supervisor with CYFD, testified that Plaintiffs had
completed all requirements of the treatment plan and
reunification program, however, Ms. Becker “felt it was
in the minor children's best interest for
[Plaintiffs'] parental rights to be terminated.”
(Id. ¶¶ 76-77.) Ms. Becker wished the
state court action “would have been completed within a
year and a half after the Petition was filed[, ]” and
she admitted that CYFD “had not met statutory
deadlines and was responsible for the damages done to the
children by the Department's delay.” (Id.
¶¶ 78-79.) Ms. Becker also found that Mr.
Woolridge, the reunification coordinator, “did not
coordinate the reunification with” Plaintiffs and CYFD.
(Id. ¶ 80.)
state court terminated Plaintiffs' parental rights on
August 18, 2015, only as to S.E. Girl on the grounds of
presumptive abandonment, pursuant to N.M. Stat. Ann.
¶¶ 32A-4-28(B)(3)(a)-(f). (Id.
¶¶ 98-99.) See also New Mexico ex rel.
Children, Youth & Families Dep't v. Donna E.,
406 P.3d 1033, 1035 (N.M. Ct. App. 2017). The New Mexico
Court of Appeals overturned the termination of
Plaintiffs' parental rights on July 26, 2017. See
Id. The court of appeals found in part that “there
was no finding and there is no evidence to support a finding
that [Plaintiffs] caused the disintegration of the
parent-child bond with [S.E. Girl], ” CYFD caused
“the deterioration of the parent-child relationship[,
]” thus “upholding presumptive abandonment
violates Section 32A-4-28 and due process[, ]” and
“there is no clear and convincing evidence that
[Plaintiffs] directly abused [S.E. Boy] or participated in
the sexual abuse of” S.E. Boy. Id. The court
of appeals remanded the case for a custody determination.
Id. at 1048.
now bring four claims against various Defendants. In Count I,
Plaintiffs allege that CYFD violated their procedural due
process rights. (Am. Compl. ¶¶ 111-18.) In Count
II, Plaintiffs allege that CYFD violated their substantive
due process rights by depriving Plaintiffs of their
constitutional right to familial association. (Id.
¶¶ 119-29.) In Count III, Plaintiffs allege that
CYFD, the Hobbs Police Department, and Detectives Dominguez
and Monroe deprived them of their constitutional rights to be
free from unlawful search and seizures and violated their due
process rights “by not executing the [New Mexico]
Children's Code to reunify” Plaintiffs with S.E.
Boy and S.E. Girl. (Id. ¶¶ 131, 138;
see also Id. ¶¶ 130-46.) Within Count III,
Plaintiffs assert that CYFD “and its employees knew
that the Defendants [sic] actions violated a Federal
Constitution [sic] or Statutory Right and that the right
violated was clearly established at the time of the
Defendants [sic] actions.” (Id. ¶ 141.)
Finally, in Count IV, Plaintiffs allege that CYFD “and
its employees have conspired with the Hobbs Police Department
to deprive the parents and the children of their
constitutional rights, that being family association, freedom
from unlawful searches and seizures, and due process.”
(Id. ¶ 148; see also Id. ¶¶
reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court “must accept all the well-pleaded allegations
of the complaint as true and must construe them in the light
most favorable to the plaintiff.” In re Gold Res.
Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015)
(citation omitted). “To survive a motion to dismiss,
” the complaint does not need to contain
“detailed factual allegations, ” but it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556.)