Suzanne Kolley, et al v. Adult Protective Services, et al

Filing

OPINION and JUDGMENT filed: AFFIRMED, decision for publication. Boyce F. Martin , Jr. (AUTHORING), Richard F. Suhrheinrich and Julia Smith Gibbons, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0204p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
SUZANNE KOLLEY, JENA KOLLEY, JOSEPH
KOLLEY, WILLIAM KOLLEY, and JOSEPH
KOLLEY, JR.,
No. 12-1283
Plaintiffs-Appellants, >
,
v.
ADULT PROTECTIVE SERVICES, et al.,
Defendants-Appellees. N
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:10-cv-11916—Mark A. Goldsmith, District Judge.

Argued: January 24, 2013
Decided and Filed: August 5, 2013
Before: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Nabih H. Ayad, NABIH H. AYAD & ASSOCIATES, P.C., Canton,
Michigan, for Appellants. John G. Fedynsky, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellees Adult Protective Services
and Fincher. Drew W. Broaddus, SECREST WARDLE, LYNCH, HAMPTON,
TRUEX, AND MORLEY, Troy, Michigan, for Appellees House, Murrell, and Holmes.
Keith J. Lerminiaux, OAKLAND COUNTY CORPORATION COUNSEL, Pontiac,
Michigan, for Appellee Neph. Heidi D. Hudson, ZAUSMER, KAUFMAN, AUGUST,
CALDWELL & TAYLER, P.C., Farmington Hills, Michigan, for Appellees Schuster,
MORC, Keefer, Antella, Giperich, Mathes, and Thomas ON BRIEF: Nabih H. Ayad,
NABIH H. AYAD & ASSOCIATES, P.C., Canton, Michigan, for Appellants. Margaret
A. Nelson, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellees Adult Protective Services and Fincher. Drew W. Broaddus,
SECREST WARDLE, LYNCH, HAMPTON, TRUEX, AND MORLEY, Troy,
Michigan, for Appellees House, Murrell, and Holmes. Keith J. Lerminiaux, OAKLAND
COUNTY CORPORATION COUNSEL, Pontiac, Michigan, for Appellee Neph. Heidi
D. Hudson, Mark J. Zausmer, ZAUSMER, KAUFMAN, AUGUST, CALDWELL &
TAYLER, P.C., Farmington Hills, Michigan, for Appellees Schuster, MORC, Keefer,
Antella, Giperich, Mathes, and Thomas.
1

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_________________
OPINION
_________________
BOYCE F. MARTIN, Jr., Circuit Judge. This case arises out of an investigation
by Oakland County Adult Protective Services into the family of Jena Kolley, a
developmentally disabled nineteen-year-old, after Jena told her teachers on two
occasions that her mother hit her. The Kolleys brought suit against the individuals and
organizations that took part in investigating Jena’s allegations. The district court
dismissed the Kolleys’ federal claims for failure to state a claim under Rule 12(b)(6) and
refused to grant supplemental jurisdiction over the remaining state claims. The Kolleys
now appeal. We AFFIRM the district court.
I.
Jena Kolley is a nineteen-year-old who has Oral Facial Digital Syndrome—a
genetic disorder that causes physical defects of the mouth, tongue, teeth, jaw, face, head,
eyes, nose, fingers, and toes, along with severe mental disability. According to her
parents, Jena communicates at the level of a child between the ages of five and seven and
has the social skills of a child between four and eight. In October of 2008, Jena arrived
at school and reportedly told a teacher that her mother, Suzanne Kolley, “hit me.” The
incident was referred to the Oakland County Sheriff’s Department, which began an
initial investigation. On November 6, 2008, Jena again told school officials that her
mother hit her, and the school referred the case to Adult Protective Services, a subsection of the Michigan Department of Human Services.
Adult Protective Services set up an interview with Jena at a facility called Care
House. Present at the interview were: Defendant Marcie Fincher, as a representative of
Adult Protective Services; Detective Neph, from the police department; and Tricia
Schuster, a forensic evaluator with Care House. Based on Jena’s statements, those
present decided to file a Petition for Appointment of a Guardian for Jena Kolley in the
Oakland County Probate Court on November 14, 2008. That same day, the court entered

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an order appointing a new guardian for Jena and authorizing her removal from the family
home to a foster home through Macomb Oakland Regional Center in Southfield,
Michigan. The Macomb Center placed Jena at Hazel House, a group foster facility. The
court appointed Thomas Brennan Fraser as a temporary guardian and on November 18,
2008, appointed Shirley Ann Saltzman as a Guardian Ad Litem.
On December 23, 2008, the court decided to allow Joseph Kolley, Jena’s father
and noncustodial parent, to be a co-guardian with Fraser. However, on January 28,
2009, Saltzman filed a report challenging Joseph’s suitability as a custodian. This led
to a hearing that day where the court decided that Jena should stay in the state’s care, but
that her father Joseph could visit her. The Kolleys allege that at the hearing the
defendants additionally offered false testimony that when Joseph visited Jena in late
December, he “made sexual connotations towards Jena Kolley and requested that Hazel
House give Jena a ‘bikini wax’ or otherwise shave her pubic hair.” The court scheduled
another hearing for March 2009. In the hallway after the January 28 hearing, Joseph and
at least one of Jena’s other family members got into a verbal fight with one of the
Macomb Center workers and engaged in allegedly assaultive behavior.
The fight resulted in Fraser filing, on January 29, an Emergency Petition and
Order seeking to suspend any visitation by Joseph and the rest of Jena Kolley’s family.
Jena’s Guardian Ad Litem filed a supplemental report recommending that the court deny
Joseph and the rest of Jena’s family any physical or telephone contact with her. On
January 30, the probate court entered an order denying the Kolleys contact with Jena
until a scheduled March hearing.
At the March hearing, the probate court restored Joseph’s visitation rights. In
July 2009, the court decided to place Jena in her father’s home and gave Joseph full
custody. Criminal charges were initially filed against Jena’s mother, Suzanne, but the
charges were later dismissed.
In March 2009, the Kolleys filed suit in federal district court, but their case was
ultimately dismissed without prejudice based on the abstention doctrine as established
in Younger v. Harris, 401 U.S. 37 (1971). In May 2010, the Kolleys filed suit again, and

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the court dismissed some claims, some with prejudice and some without prejudice, and
allowed the Kolleys to amend their complaint. Finally, in April 2011, the Kolleys filed
an amended complaint advancing three federal claims under section 1983 and six state
claims. Regarding the federal claims, the Kolleys allege that the defendants deprived
them of their right to familial association and their parental liberty interests in violation
of the First and Fourteenth Amendments.
After motions to dismiss by all the defendants, the district court dismissed the
federal claims, finding the Kolleys had failed to state a claim under Rule 12(b)(6). The
court concluded that Pittman v. Cuyahoga Cnty. Dept. of Children and Family Servs.,
640 F. 3d 716 (6th Cir. 2011), controlled the case. The court refused to grant
supplemental jurisdiction over the state claims. The Kolleys now appeal.
II.
“We review de novo a district court’s dismissal of a plaintiff’s complaint for
failure to state a claim under Rule 12(b)(6).” Kottmyer v. Maas, 436 F.3d 684, 688
(6th Cir. 2006). Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a
plaintiff’s complaint if it fails to state a claim upon which relief can be granted. Id. “To
survive a motion to dismiss, a complaint 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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“Conclusory allegations or legal conclusions masquerading as factual allegations will
not suffice.” Eidson v. State of Tennessee Dept. of Child Servs., 510 F.3d 631, 634 (6th
Cir. 2007).
First, we will assess the Kolleys’ claim that the defendants violated their
Fourteenth Amendment due process rights by depriving them of their parental liberty
interest. The Kolleys allege that they were deprived of their substantive and procedural
due process rights when the defendants: petitioned for an ex parte order when no
emergency existed; failed to notify Joseph Kolley of the hearings; falsely testified about
Joseph Kolley’s actions and statements; and took advantage of Jena’s disability to make

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allegations against Suzanne Kolley. The actions allegedly resulted in Joseph Kolley
being denied custodial rights.
There are two types of deprivations that support substantive due process claims:
“(1) deprivations of a particular constitutional guarantee; and (2) actions that ‘shock the
conscience.’” Pittman, 640 F.3d at 728. This claim deals with the first type of
deprivation—deprivation of a constitutional guarantee, particularly the right to the
maintenance of a parent-child relationship. While “the Supreme Court has repeatedly
reaffirmed the existence of a constitutional right to the maintenance of a parent-child
relationship,” that right is “neither absolute nor unqualified.” Kottmyer, 436 F.3d at
689–90. Thus, a government investigation of child abuse will not automatically
implicate the right to familial association, id., absent “evidence of bad faith, improper
motive, or investigation tactics that ‘shock the conscience.’” Teets v. Cuyahoga Cnty.,
Ohio, 460 F. App’x 498, 502 (6th Cir. 2012) (citing Kottmyer, 436 F.3d at 691 & n.1).
The district court relied almost exclusively on Pittman in dismissing the Kolleys’
substantive due process claims, and we agree that Pittman’s analysis applies to this case.
In Pittman, a father, Ricky Pittman, brought a section 1983 action against the Cuyahoga
County Department of Children and Family Services and the primary social worker for
Pittman’s son, who had been removed from his mother’s custody by Cuyahoga Family
Services.

Pittman, 640 F.3d at 718.

Pittman claimed the defendants had

“unconstitutionally deprived him of his fundamental right to family integrity, failed to
accord him requisite due process before awarding custody to [his son’s grandmother],
and acted wantonly and recklessly in the state court custody proceedings.” Id. at 722.
Pittman argued that the social worker made “detrimental misrepresentations about
Pittman in internal [Cuyahoga Family Services] proceedings,” and as a result Cuyahoga
Family Services determined he was unfit to be a caregiver to his son. Id. at 729.
In reviewing the district court’s denial of the social worker’s motion for summary
judgment, this Court found Pittman’s substantive due process arguments unpersuasive
because “to the extent that Pittman [had] suffered a deprivation of his fundamental right
to family integrity, that deprivation was perpetrated by the juvenile court, not by [the

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social worker].” Id. at 729. This Court reasoned that under Ohio law juvenile courts
make custody determinations, thus Child Services and social workers are “merely
[parties] to the juvenile court proceedings, tasked with presenting to the juvenile court
[their] recommendation as to the appropriate course of action . . . .” Id. Because the
juvenile court holds “the ultimate decision-making power with respect to placement and
custody, it alone could deprive Pittman of his fundamental right,” and the social
worker’s conduct did not violate Pittman’s substantive due process rights. Id.
The Pittman analysis controls here. We recently applied Pittman in an analogous
unpublished case. Teets, 460 F. App’x 498 (upholding a district court’s grant of
summary judgment to the defendants under the Pittman standard where the parents of
a girl brought substantive and procedural due process claims against social workers and
investigators for the investigation of their daughter’s sexual abuse claims that resulted
in her removal from the house). Although Pittman and Teets involved Ohio law,
Michigan courts also have the ultimate decision-making power on custody and guardian
appointment for developmentally disabled persons and can determine that such persons
may need to be placed in a facility. Mich. Comp. Laws Ann. § 330.618(4)-(5) (West
2012); Mich. Comp. Laws Ann. § 330.1623. Each of the allegations in the Kolleys’
amended complaint have to do with the defendants’ actions before the court decided to
deny Joseph Kolley visitation rights. Despite the alleged misrepresentations, the court
was the final decision-maker regarding Jena’s custody decisions.

The Kolleys’

substantive due process claim fails.
Regarding the Kolleys’ procedural due process claim, the Kolleys must show that
they were deprived of “‘notice and opportunity for hearing appropriate to the nature of
the case’ before the termination [of parental rights became] effective.” Pittman,
640 F.3d at 729 (quoting Bell v. Burson, 402 U.S. 535, 542 (1971)). As with the
substantive due process claims, Pittman controls. In Pittman, this Court held that
Pittman’s procedural due process claims failed because he argued that the social worker
had deprived him of notice and opportunity for a hearing before the juvenile court made
the placement decisions. Id. at 729–30. This Court found it was the juvenile court’s

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duty, and not the duty of the social worker, to give notice to Pittman and thus upheld
summary judgment for the social worker. Id. Here, too, the Kolleys argue that the
defendants violated their procedural due process rights when the defendant social
workers failed to notify Joseph Kolley of the custody hearings. Once again, as in Ohio,
it is the Michigan courts’ duty to notify the appropriate parties to a custody hearing.
Mich. Comp. Laws Ann. § 330.1614(3). The Kolleys’ procedural due process claim
fails. The Kolleys have not stated a claim upon which relief may be granted under Rule
12(b)(6).
The Kolleys First Amendment claim also fails. They allege the defendants’
actions, prior to the court order removing Jena from the Kolley household, violated their
First Amendment right to family association. While the Kolleys have invoked the First
Amendment, intimate association claims, such as the right to family association, are
generally raised under the Due Process Clause of the Fourteenth Amendment, whereas
freedom of expressive association claims—right to assembly, speech, petition for the
redress of grievances, and the exercise of religion—are protected by the First
Amendment. Anderson v. City of LaVergne, 371 F.3d 879, 881–82 (6th. Cir. 2004)
(noting that an intimate association claim is a privacy interest derived from the
Fourteenth Amendment and related to the First Amendment) (citing Roberts v. U.S.
Jaycees, 468 U.S. 609, 617–18 (1984)). Family association is a form of intimate
association, Roberts, 468 U.S. at 619–20, and therefore the argument is better considered
as a Due Process claim. Because we analyze the family association claim under a due
process framework, the Pittman analysis also applies.
The Kolleys allege that the defendants: wrongfully induced statements from Jena;
wrongfully applied for an ex parte order from the court; misrepresented the evidence
before the court; and exaggerated the level of danger Jena faced. The Kolleys argue that
these actions led the court to order Jena’s removal from Suzanne Kolley’s home. As
with the Kolleys’ arguments regarding the denial of Joseph Kolley’s visitation rights,
because the Michigan courts have custodial decision-making power, Mich. Comp. Laws
Ann. § 330.618(4)-(5) (West 2012); Mich. Comp. Laws Ann. § 330.1623, a violation of

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the Kolleys’ rights lies with the court and not with the defendants. The Kolleys have not
alleged a legitimate violation of their associational rights. Their claim must be
dismissed.
III.
The Kolleys argue that the district court erred in denying them discovery before
granting summary judgment for the defendants. The entire Kolley brief operates under
the mistaken understanding that the district court resolved the case at the summary
judgment stage. This is incorrect; the court dismissed the case under Rule 12(b)(6). A
plaintiff is not entitled to discovery before a motion to dismiss, and dismissal under Rule
12(b)(6) helps protect defendants from expending resources on costly discovery for cases
that will not survive summary judgment. Twombly, 550 U.S. at 558–59; Yuhasz v. Brush
Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003). We affirm the district court.
IV.
The district court found in its order dismissing the original complaint that Hazel
House was not a state actor for the purposes of the Kolleys’ federal claims and was only
properly joined for the Kolleys’ state claims. Because the district court refused to
exercise supplemental jurisdiction over the state claims, it granted Hazel House’s motion
to dismiss. The Kolleys do not dispute that Hazel House is not a state actor, but
maintain in their reply brief that if this Court reverses the district court decision, Hazel
House will once again be a properly joined party to the case because of their state
claims. Because we affirm the district court decision as to the federal claims, we need
not decide this issue. The dismissal of Hazel House remains in effect.
V.
We AFFIRM the district court judgment.