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Everhart v. Dominguez

United States District Court, D. New Mexico

August 29, 2018

DONNA EVERHART and HARLEY EVERHART, individually and as next of friend for S.E. BOY and S.E. GIRL, minor children, Plaintiffs,



         This 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.

         Plaintiffs 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.

         I. Background[1]

         Plaintiffs 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.)

         After 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.[2] (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.)

         S.E. Girl has been in at least three foster homes and two adoptive home placements since June 2010.[3] (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.)

         In 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.)

         CYFD “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.)

         The 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.

         Plaintiffs 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. ¶¶ 147-52.)

         II. Legal Standard

         In 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.)

         III. ...

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