Vaughan v. Foltz, et al

Filing 111

ORDER denying 98 Amended Motion for Reconsideration. Signed by District Judge Louise Wood Flanagan on 8/23/2018. (A copy of this order was sent via US mail to Susan W. Vaughan, 613 Fifth Ave, Apt 1, Greensboro, NC 27405.) (Collins, S.)

I

IN THE UNITED STATES DISTRICT COURT
FORTHE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DMSION
No. 2:16-CV-61-FL

FILED
JUL 2 4 2018
PETER A. MOO@:':·• EDNC
CLERK
US DISTRICT
RT,
BY
.
' C,DEPCLK
'

SUSAN W. VAUGHAN
PLAINTIFF,

v

)
)
)

AMENDED
MOTION FOR
RECONSIDERATION
with CORRECTED
EXHIBIT ATTACHMENTS

)

SHANNON FOLTZ, et al

)

)

DEFENDANTS

)

RULE.54 (b)

Motion DENIED. 
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August
23
This the ____ day of ___________, 20___. 
/s/Louise W. Flanagan, U.S. District Judge 

************************************************************************
COMES NOW Plaintiff, Susan Vaughan, pursuant to Federal Civil Rule 54 (b), seeking

reconsideration of some of the partial summary judgments and conclusions stated in
Orders of October 27, 2017, and June 20, 2019 and others. This motion for
Reconsideration is brought under Rule 54(b), which recognizes that this Court has
"inherent power to reconsider an interlocutory order as justice requires." Wannall v.
Honeywell Int'l, Inc., No. 10-351, 2013 WL 1966060, at *4 (D,D.C. May 14, 2013).
Also from the 4th Circuit
Because Plaintiffs seek reconsideration ofa non:final, interlocutory order, their
mqtion is properly analyzed under Fed.R.Civ.P. 54(b). See Fed.R.Civ.P. 54(b)
("[A]ny order or other decision, however designated, that adjudicates fewer than
all the claims or the rights and liabilities offewer than all the parties does not
end the action ... and may be revised at any time before the entry ofa judgment
adjudicating all the claims and all the parties ' rights and liabilities. ').
c,
COULIBALY v JP MORGAN BANK, US District Court Maryland, 2013

Plaintiff's requests for reconsideration center mainly around the Orders' misapplication
of Troxel and Vosburg to Plaintiff's case; this Court's failure to recognize Plaintiff's
legal status of custodian, based on laws effective in August, 2014; the illegitimacy of the

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venue transfer not being portrayed as such in the order; misstatements regarding the
"responsible individual" issue and the jurisdiction issue.
There are also a few other errors, some only minor, which Plaintiff suggests
should be corrected.. The arguments and citations and/or attachments; supporting these
requests follow:.
ARGUMENTS

1.

The Orders issued by this Federal District Court, all of them, either state or imply

that Plaintiff was not legal custodian of EN before his removal, which is significantly
incorrect, as this assertion also effects Plaintiff's Constitutional and state rights.
a) Footnote 9 on page 12 of the October 27, 2 917 Order states that Plaintiff
"alleges no facts in either her complaint or amended complaint or in either
of her objections to the M&R or Supplemental M&R that she had or has
legal .... custody of her grandchild. and alleges facts that indicate
otherwise." This is incorrect.
Number 4, under the "PARTIES" section of Plaintiff's original states the
following:
PARTIES

4. At all times relevant to this Complaint, Plaintiff SUSAN
VAUGHAN resided in the County ofDare, North Carolina
maintaining a family as the mother of a disabled adult, the child's
mother - and as the grandmother, caretaker and custodian of the
mother's son, before he was unlawfully removed from their home
by Defendants.

Also, the first paragraph of the INTRODUCTION of Plaintiff's
original complaint reads as follows:

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INTRODUCTION
Based on information and belief, PLAINTIFF alleges that DARE DSS
and JUDGE DA VIS intentionally avoided their duty to either allege
or properly rely upon facts that meet any of the NC Juvenile
Code's definitions of abuse, neglect or dependency or conform to
State or Federal DHHS requirements for PETITION allegations
presented with the purpose of intervening in the cohesion of a
family unit and child/parent/caretaker/custodian relationship

Also, in paragraph #133 of Plaintiff's original complaints she states the
following:
This failure to recognize PLAINTIFF as the child's legal
custodian and caretaker, based on Juvenile Code definitions
effective in August, 2013, PLAINTIFF came to realize was
intentional, to cover up the fact that PLAINTIFF's as well as the
mother's right under 50-A and UCCJEA 205 a and NC GS 50-A to
be heard before any child custody determiriation was made, were
violated.

Found in Plaintiff's original complaint, paragraph # 218, is the
statement: " ... based on Juvenile Code 7B at the time of the child's removal,
PLAINTIFF met the definitions of both caretaker AND custodian ...."

b)

Throughout both Plaintiff's original and Amended Complaints, Plaintiff

repeatedly refers to herself as the grandmother/caretaker/custodian of EJV.
c)

Based on the Statute in effect on August 14, 2013, Plaintiff met the definition

of"custodian." Cited below is NC GS 7B-101 (8) that was effective in
August, 2013, in which a "custodian." is defined as
(8) Custodian. - The person or agency that has been awarded legal
custody of a juvenile by a court or a person, other than parents or legal
guardian, who has assumed the status and obligation of a parent
without being awarded the legal custody of a juvenile by a court.
[emphasis added).
·

d) Even though the law regarding the legal definition of "custodian" was changed
on October 1, 2013, that did not affect Plaintiff's status at the time EJV was

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removed. on August 14, 2013, from her custody in violation of several laws ..

e)

Even though the Court would finally recognize only Plaintiff's caretaker

status, (but not until after the fourth hearing), this was because both Dare and
Currituck DSS falsified, under oath, their legally required Mtldavits as to

Status of Minor Child•. Dare omitted Plaintiff's name entirely, and
Currituck omitted the fact that EJV was in Plaintiff's sole care and custody
after his mother was hospitalized. Furthermore, Neither department honestly
answered the question on the Affidavit regarding who had and/or claimed
custody. See the attached copies of Dare County"s [Foltz's] false, Currituck
County's [Harris'] false, and Plaintiff's corrected Affidavits for comparison
[Exhibits 1, 2, 3 respectively].
f) Plaintiff asserts she had Constitutional rights as custodian of EJV. Also as a

US Citizen Plaintiff had right to due process, to not have her name and reputation
besmirched by false allegations and in a way that forced her to go to great
expense to defend against lies that ended up depriving her of her right to
reunification with her grandson, of her right to adopt him and in a way that
continues to deprive her of any association whatsoever with her grandson, whom
she took very good care of the first months of his life- a fact Foltz admitted,
herself, before she falsely accused Plaintiff of nothing that amounts to child
neglect [see attached Exhibit 4].
2.

Regarding Troxel": Plaintiff argues that recognition of her correct legal status as

Custodian has some bearing on this Court's interpretation of Troxel as it relates and does
NOT relate to this case. Troxel (see citation below) involves grandparents who are not

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custodiaris and do not live with the grandchildren they, nevertheless, claim they have a
right to visit on their terms. The grandparents' claim to visitation in Troxel conflicts with
the desires of the children's mother. The Court rightfully ruled that the mother's rights
trumped the grandparents'.
Petitioners Troxel petitioned for the right to visit their deceased son's daughters.
Respondent Granville, the girls' mother, did not oppose all visitation, but objected
to the amount sought by the Troxels. The Superior Court ordered more visitation
than Granville desired, and she appealed The State Court ofAppeals reversed
and dismissed the Troxels' petition. Jn affirming, the State Supreme Court
held, inter alia, that§ 26.10.160(3) unconstitutionally infringes on parents'
fundamental right to rear their children [Troxel v. Granville, 530 U.S. 57 (2000)].

3. Plaintiff's case, however, is entirely different than the circumstances in Troxel.
Plaintiff was the primary caretaker of EN since his birth and his custodian during and
before his mother's absence, and it was the mother's choice that Plaintiff remain as his
custodian during her recovery. Plaintiff, EN and his mother were, before DSS
interfered, one family unit .
However, Foltz initially misled the court to believe that EN had become
dependent because of his mother's hospitalization, omitting the fact that he was also
living with and being cared for by Plaintiff, and her Petition maliciously attacks Plaintiff,
not as the one caring for him and who had custody, but as an inappropriate consideration
for placement, as if Plaintiff lived elsewhere and had nothing to do with EN' s care and
custody all his life.
a) According to NC GS 7B-101 (18 b), cited below, and NC DHHS regulations,
Plaintiff and their home are the person and place with whom EN should have
been reunited, even though he should not have been removed in the first place
NCGS 78-101 (18b) Return home or reunification. -

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Placement of the juvenile in the home of either parent or placement of
the juvenile in the home of a guardian or custodian from whose
home the child was removed by court order.

b) According to North Carolina Department of Health and Human Services, DSS
On-line Manual, reunification is with the person from whom the child was taken even if only a caretaker [Exhibit 5].
1. Reunification
Reunification means that the biological/adoptive parent(s) or caretaker from
whom the child was taken regains custody of the child.
http://info.dhhs.state.nc.us/olm/manuals/dss/csm-1 O/man/css1201c6-06.htm

4.

Plaintiff therefore argues that Troxel is relevant to this case only as it supports

EN's mother's choice to have her son in Plaintiff's custody, a choice DSS agent Foltz
confirmed under oath in Court on September 23, 2013, the proof of which is documented
in the testimony of Shannon Foltz found in the court recording for that date, which
Plaintiff can, or the district court should. provide this Court on request.
5.

Regarding the "Responsible Individual" issue. The Court's June 20, 2018 Order,

# 3 (a) under ''New Claims and Allegations" states the following:
Plaintiff's second claim, a 1983 procedural due process claim arising under the
Fourteenth Amendment, alleges injury to reputation regarding plaintiff's
placement on the list of "responsible individuals" under NC. Gen. Stat. 7B.
Plaintiff now clarifies that she has not been placed on this list.
The first sentence above is not fully correct, and the second is completely incorrect.
a) Plaintiff has never stated nor implied that she has not been placed on a list or
registry naming her as a "responsible individual." Plaintiff stated that she did not
know whether or not she was placed on such a list, and that she did not "allege"
that she had been so placed, because she did not have access to that information.
It is, in fact, Defendants and their attorney who claim, without providing
any substantiating evidence, that Plaintiff was not placed on the list. Plaintiff

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needs tangible proof to support this claim and that she was not placed on any list,
anywhere, naming her as a child abuser or neglecter or implying such. In fact,
to claim that Plaintiff name was not added to the state's Central Registry, with
information that could be used against her .would be a contradiction ofNCGS
7B-311 (a) [see attached] and the information found in the State's 47-page
Manual #1425 "Central Registry" found here,
https://www2.ncdhhs.gov/info/olm/manuals/dss/csm-60/man/CS1426.PDF
Both documents explain the certainty that Planitiff is listed as a
"perpetrator" on the NC DHHS's Central Registry.
Because Plaintiff was never provided the 7B-320 required evidence
Currituck DSS allegedly relied upon to accuse Plaintiff, and she was then denied
by Matusko a hearing date after she file~her Petition for Judicial Review, DSS
was remained in a position to blackmail, threaten, coerce Plaintiff into signing a
Stipulation of a lesser "charge" which she was denied any opportunity to Appeal and
have the allegations ofneglect dropped, .because of more Violations committed by

Matusko in his mishandling of Plaintiffs Notice of Appeal and DSS in removing
Plaintiff as a party and blocking her ability to appeal.
b)

Page 4, #11 of Plaintiffs March 30, 2018 Motion for Clarification further

supports Plaintiffs request for correction. It states the following:

Plaintiff has no way of knowing if DSS agents did or did not, in the end,
have her placed on a State Responsible Individuals List.
c) Plaintiff alleges numerous times, and has provided evidence to substantiate her
claim, that Currituck defendants did indeed designate Plaintiff as a "responsible

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individual." [see attached copy of Currituck DSS Juvenile Summons, Exhibit 7,
issued Sept. 18, 2013 and filed served Sept 23, 2013].

In other words, Plaintiff was accused by Currituck DSS defendants of
"seriously neglecting" her grandson, which is the same, pursuant to under 7B-101
(18 a), as labeling her a "responsible individual" - although Defendants never
provided any evidence to substantiate that allegation, never provided Plaintiff
with evidence required by ?B-320. And Sheriff Doughtie prevented the
pediatrician from providing subpoenaed evidence that disputes that claim.

(18a)

d)

Responsible individual. - A parent, guardian, custodian, or
caretaker who abuses or seriously neglects a juvenile.

Plaintiff argues that the claim regarding injury to her reputation does not

involve

only this designation, the false allegation of "serious neglect" and their
consequences. It involves all the false allegations DSS agents alleged against her
and the violations committed that obstructed due process and her ability to rebut
false allegations, which cruelly blocked her right to be reunited with her grandson.
All of DSS malicious lies remain on the record of several cases and
continue to negatively affect Plaintiff's reputation and numerous other rights.
e) The attached [Exhibit 8] excerpt from DSS Order dated June 23, 2016 is evidence
that DSS continued to use past, unsubstantiated allegations that were alleged in
the ''Neglect/Dependency" case to discredit and accuse Plaintiff and deny her
Petition for Adoption of EJV despite all the due process violations that created
those false allegations.
:t)

Plaintiff reiterates, that had numerous violations of her constitutional right to
due process not been committed, repeatedly, by Defendants and others this Court

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has not allowed to be named defendants in this case, these untrue, defamatory
allegations could not remain on the record and continue to be used - as they are
being used as they are even now against Plaintiff, by Defendants'

attorneys who

denigrate Plaintiff and her character in their responses.
g)

Because these false allegations remain on the record, many assume they are
true, even though they are completely false, distorted or irrelevant to a child's
welfare, as confirmed by NC DHHS' Screening Tools and legal definitions.

6.

Plaintiff's March 30, 2018 Motion for Clarification also states the following:
i3. The current Complaint alleges that DSS agents, Clerk of Court Matusko

and Sheriff Doughtie conspired to design.ate Plaintiff as a "responsible
individual" and block Plaintiff's attempt to clear her name of that Design.ation,
which was used to coerce her into signing a stipulation. The design.ation has
not been removed, despite DSS promises, either from the Petition or Orders in
the State District Court Records

a) Currituck DSS took no action whatsoever, despite claims of removing the
"serious neglect" accusation, to amend the petition or Summons, even though
they had the option to do so under 7B-800.
b) § 7B-800. Amendment ofpetition.
The court, in its discretion, may permit a petition to be amended The court
shall direct the manner in which an amended petition shall be served and
the time allowed for a party to prepare after the petition has been
amended. (1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2010-90, s. 11.)

The official copies of the Petition, found in the Record on Appeal with the NC
Court of Appeals provides evidence that DSS never amended the Petition
accusing Plaip.tiff of "serious neglect" and designating her as a "responsible
individual."
7.

The next argument Plaintiff asks this Court to reconsider is the one involving

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jurisdiction ru;id judge immunity. The UNC School of Government specifically addresses
what is required for jurisdiction of a child Abuse/Neglect/Dependency (A/NID) case. And
UNC SOG's Sara DePasquale, reiterates those requirements, and where they are found in
the law, in a blog on the School's website to distinguish between Venue and Jurisdiction
as they apply to AINID cases.

a) The School of Government states the following regardingjurisdiction:
The district court has exclusive, original jurisdiction over any case involving a
juvenile alleged to be abused, neglected, or dependent. G.S. 7B-200. The district court
also has exclusive original jurisdiction over termination ofparental rights cases. G.S.
7B-20o(a)(4); G.S. 7B-1101. In a particular case, however, the court may lack

subject matter jurisdiction if steps necessary to invoke the court's jurisdiction
have not been taken [emphasis supplied, UNC SOG Manual 3.2
[Chapter 3, p5] A. Introduction: Subject Matter Jurisdiction states]
b) UNC SOG's Sara DePasquale writes the following in a blog about Venue vs.
Jurisdiction

The General Assembly has the power to ''fix and circumscribe the
jurisdiction of the courts, " which can require certain procedures. In
re T.R.P., 360 NC. 588, 590 (2006). AINID and TPR cases are statutory
in nature and set forth specific requirements that must be followed. Id In
an AIN/D or TPR action, the first place to look is the Juvenile Code
(GS Chapter 7B) because it establishes both the procedures and
substantive law for these types ofjuvenile proceedings. See GS7B100; -1100. https ://civil.sog. unc. edu/its-complicated-venue-vsjurisdiction-in-and-and-tpr-actions/
c) Another source makes a similar statement regarding other types of cases:

The petition required to put the court in motion and give it jurisdiction
must be [in] conformity with the statute granting the right and must show
all the facts necessary to authorize it to act, - i. e., it must contain all the
statements which the statute says the petition shall state, - and ifthe
petition fails to contain all of these essential elements the court is without
jurisdiction. Hookv. Wright, 329 JU. 299; Musselman v. Paragnik, 317 id
597; Keal v. Rhydderck, 317 id 231. Brown V. VanKeuren, 340 fll.
118,122 (1930).

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d) The facts in Plaintiffs case show that Judge Davis and Caseworker
Foltz failed in several ways to take the legal "steps necessary to invoke
the court's jurisdiction."

1. First Foltz had no legal right pursuant to 7B-404, to take her petition to the.
magistrate, seeking EJV's removal. The laws required her:
a) to have legal grounds and standing to file an A/N/D Petition
b) to take her petition to the courthouse for processing, unless it
was closed AND there was an emergency (She did NOT claim
or have an emergency, And she didn't take her petition to the
courthouse, which was open.at the time)
c) to provide an attached Affidavit as to Status of Minor Child
containing all the required information disclosing where and with
whom the child had lived in the past 5 years, who had physical
custody of the child and who claimed a right to custody. She
omitted all except the location. [Exhibit 1].
d) to allow the person having physical custody and parent to be
heard prior to a custody determination
2. Second, Judge Davis had no right and no jurisdiction, under the
circumstanc<?s, to participate in an ex parte telephonic hearing seeking to invoke
jurisdiction when the courthouse was open for business. Law allowed her to:

a) preside over hearings in A/N/D cases over which District 1
Jurisdiction had been properly invoked in compliance with
7B-401-407. Neither she nor Foltz complied with any of these
laws that mandate the "steps necessary to invoke the court's
jurisdiction." [Exhibit 9, NCGS 7B-401-407]
b) participate in an ex parte hearing seeking a nonsecure
Custody order only "pursuant to criteria set out in G.S. 7B-503"
and in compliance with section 500 of the NC Juvenile Code that
speaks to dangerous situations, where a caseworker has reasonably,
for the child's protection, already removed a child without order or
warrant, for a 12-hour period, in which time a parent or custodian
has the right to be with the child and is given an opportunity to be

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heard on the matter before a nonsecure custody order is sought.
3 . Again, an emergency was not even alleged in Plaintiff's case. The
attached copy of the August 14, 2013 nonsecure custody order [Exhibit 10]
provides a box to check (#3) when there is an "immediate threat of harm," to the

child which includes a requirement to "describe" that "threat of harm." That box
was left blank, because clearly there was no immediate need, no threat of harm no emergency - none ~ven alleged- that would allow Foltz to lawfully seek an ex
parte order at the magistrate's office (and then only ifthe courthouse was closed)

or for Judge Davis to authorize such an order. Neither condition existed. Nor was
the criteria of 7B-503 met, based on 7B Definitions and NC DHHS "Screening
Tools," found on the state website, linked below.
https://www2.ncdhhs.gov/info/olm/manuals/dss/csm-60/man/CS 1407.pdf pp 53, 59
4. Plaintiffs question remains. How does a caseworker and judge establish
jurisdiction and earn immunity by breaking the laws and also violating Plaintiff's
right to due process in that process? How c~ immunity apply in this case,
especially considering the gravity of the consequences?
5. That unlawfully sought and unlawfully authorized order not only authorized
caseworker Foltz and police officers to invade Plaintiff's home with no probable
cause for doing so, it put into motion a barrage of false allegations and defamation
of character against Plaintiff that has snowballed into the outrage described herein
and in her complaints.
6. Plaintiff further argues that this Court has confused venue with jurisdiction.
Subject Matter Jurisdiction Is Not Venue and Vice Versa:

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These two legal concepts are not interchangeable. "Jurisdiction
implies or imports the power of the court; venue the place of
action." Shaffer v. Bank, 201 NC. 415
(1931).

Plaintiff may have made a bad choice with her "peanut butter sandwich"
example, but her point was and is that venue alone is not sufficient to establish
subject matter jurisdiction. There has to be a "crime" committed - a wrong done harm to a child, in this case - AND proper due process followed, in order to
establish subject matter jurisdiction. Those conditions did NOT exist!
8. At any point before the A/N/D case got out of control as it did, Judge Davis could
have corrected her error. Shannon Foltz could have corrected her Affidavit and refiled a
petitio~

if she had grounds, the proper way -at the courthouse, allowing Plaintiff to be

heard prior to any child removal. She and the court would have learned that there was no
threat to EJV's well-being, that he was unharmed, healthy and well-cared for, that
Plaintiff had set up an appointment with a TBI expert for the mother that would help her
recover and be able to care for her child, and any other concerns could have been cleared
up. They already had a pediatrician report confirming no harm.
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But Plaintiff NEVER got that opportunity, even though she filed a Motion [Exhibit

11 ], while the case was still in Dare County, to stay the proceeding until the faulty,
fraudulent Affidavit was corrected, as SOA-209 allows. Nevertheless District 1 and DSS
chose to break even more laws, rather than to simply correct their previous violations.
c) NC GS SOA-209 (b) states:

Ifthe information required by subdivisions (a) is not furnished, the
court, upon motion ofa party or its own motion, may stay the proceeding
until the information is furnished [Exhibit 11].
10.. One of Plaintiff's requests for correction involves footnote 4 on page 3 of the

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October 27, 2017 Order, which only echoes DSS' s excuse for the transfer to Currituck
County, failing to point out that the claim of "conflict of interest " was not a legitimate
reason for venue transfer prior to adjudication before the law was amended in October,
2013 .. In fact the law at the time did not allow any reason or excuse for transfer prior to
adjudication.
a) Even if one could argue that there were no legal options for correcting the conflict
of interest that DSS created, there were no legal grounds at the time for
transferring a case prior to adjudication for ANY reason, nor did DSS meet all of
the conditions of the new law effective on October 1, 2013 anyway.
In fact there was at least one legal option, which DSS chose to unlawfully
ignore - EN' s mother had signed over healthcare power of attorney to Plaintiff.
b) Said footnote, therefore, should have stated that "Dare DSS claims the reason
for transfer was due to a conflict of interest, however the law in effect at the time
did not allow transfer of venue prior to adjudication - for any reason."
c) The law on case transfers effective in September, 2013 reads exactly as follows
with emphasis in bold added:

§ 78-900. 1. Post adjudication venue.
(a) At any time after adjudication, the court on its own motion or motion
of any party may transfer venue to a different county, regardless of
whether the action could have been commenced in that county, if the
court finds that the forum is Inconvenient, that transfer of the action to
the other county is in the best interest of the juvenile, and that the
rights of the parties are not prejudiced by the change of venue.
Of course Plaintiff was not consulted about the change of venue, nor was it
in the best interest of anyone except those seekirig to cover up the fraudulent
Dare County actions.

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d) Plaintiff argues the importance and relevance of the distinction described above
is that even ifDare DSS had established agency jurisdiction, Currituck DSS did
not, nor did District 1 have any legal authority to transfer the case to Currituck
County.
11. Next Plaintiff argues that Vosburg v Department of Social Services does not apply
to her case. Vosburg addresses the issue of immunity for DSS caseworkers performing
their function filing removal petitions in a normal and legal way.. Plaintiff agrees that
caseworkers, because of their important role in protecting children, should enjoy at least
quasi-prosecutorial immunity while seeking removal orders -- so long as they don't

commit crimes in t/1e process and correct their mistakes as soon as they are made
aware of them.
Plaintiff's complaint is not in regard to caseworkers' roles of filing removal
petitions per se. Plaintiff's complaints are specifically directed toward caseworkers and a
judge who violated due process and other laws in their attempt to invoke jurisdiction,
including, on the caseworkers' part, fabrication of evidence and omission of crucial
evidence and perjury. These crimes of fraud and perjury are felonies - felonies on the
same level as child abduction!
Social workers' behavior in Plaintiff's case has nothing to do with the "mistakes"
referred to in a case cited in Vosburg in support of its decision, basing it on the Supreme
Court decision in Imbler [cited below].. Plaintiff is not complaining about trivial matters
or honest mistakes made for humanitarian reasons. The crimes committed by caseworkers
against Plaintiff caused trauma to her daughter and likely life-long harm to

EN

and

involved blatant lies and misleading information that blocked Plaintiff's ability to defend

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herself initially, followed by a concerted cover-up to protect caseworkers who Plaintiff
had given every opportunity to correct the lies and omissions and other violations that
caused and led to more serious damages - damages that could have been easily and
quickly ameliorated.

The social worker's independence, like that ofa prosecutor, would be
compromised were the social worker constantly in fear that a mistake could result
in a time-consuming and financially devastating civil suit. In Meyers v. Contra
Costa County Dept. ofSocial Services, 812F2d1154
https://www.leagle.com/decision/19891017884f2d1331991
Furthermore, how is a civil suit against a caseworker financially devastating to him/her,
when they don't have to pay any costs?
Also cited in the Vosburg ruling is a decision made by the 6th Circuit based on
I

'

Supreme court rulings in Imbler, Butz, and Briscoe v. LaHue. The 6th Circuit wrote that
social workers in their jobs to protect children:
« ... must be able to perform the necessary tasks to achieve this goal without the
worry of intimidation and harassment from dissatisfied parents.»

Plaintiff would agree with that statement, but Plaintiff can assure this Court and
anyone else, that had caseworkers in Dare and Currituck not falsely accused her, not
committed fraud and perjury and not violated many other laws, including her right to be
heard at a meaningful time and way, she would not have any need to file any complaint or
pleading at all. It is insult to injury that caseworkers who intimidate, lie harass and
destroy families are the ONLY ones protected against the kind of intimidation and
harassment and much much worse, that Plaintiff has endured for over five years, because
Vosburg is being used as an excuse to allow them to get away with anything and
everything..
Another very important issue related to absolute immunity is one very erroneous

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justification offered in support of Imbler - in its assuming that there are safeguards to
counter any prosecutorial misconduct.:

The duties ofthe trial judge, and the adversarial and appellate processes, are
designed to prevent many potential violations of constitutional rights. See Butz v.
Economou, 438 US. 478, 512, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).
What is important to note in Plaintiff's case is that DSS not only fabricated
evidence against Plaintiff, failed to properly invoke jurisdiction, failed to provide any
evidence to support neglect and dependency, while stifling Plaintiff's ability to rebut - but
also the Clerk of Superior Court, DSS and the judges, even her own attorney, conspired
to block her from appealing the determination of neglect based solely upon a fraudulently
acquired stipulation, that Plaintiff contested in com1, and for which Plaintiff sought but
was denied amendment... So where were the so-called safeguards the Supreme Court is
apparently naive enough to believe exist in Juvenile courts, despite much evidence to the
contrary, based on research by NCCPR and others, and many cases like Plaintiff's. that
have occurred and continue on because of misapplication of absolute immunity.
Nevertheless, the Supreme Court reasoned in Antoine and Kalina - that there are
exceptions to immunity within the "prosecutorial" process of caseworkers. These
exceptions, such as submitting Affidavits to the court, are relevant to this case. Plaintiff
has complained since September, 2013 about the fraudulent Affidavits submitted by
Caseworkers Foltz and Harris, regarding the status of EN, both of which failed to
acknowledge the fact that Plaintiff had and claimed custody ofEJV. The custodial status
was a crucial issue in Plaintiff's ability to appeal and reunification, and is crucial to this
Federal lawsuit, regarding her Civil Rights claims to association, reunification and ability
to regain custody of and adopt her grandson.

l&

Therefore, a prosecutor's submission of an affidavit to the court as a witness, as
in Kalina, or a court reporter's preparation of a transcript for the court, as
in Antoine, were not absolutely immune because those functions were not
absolutely immune at common law. [Miller v Nevada - see full citation
below].
The Court in Kalina further emphasized that it is only the specific function
performed, and not the role or title of the official, that is the touchstone of
absolute immunity. Kalina, 522 US. at 127, 118 S. Ct. 502. Officials performing
the duties ofadvocate or judge may e11joy absolute immunity for some functions
traditionally performed at common law, but that protection does not extend to
many of their other functions. Id. at 129-31, 118 S.Ct. 502; ?see also Antoine,
508 US. at 435-37, 113 S.Ct. 2167. The Court said that although a prosecutor is
fully protected by absolute immunity when performing the traditional functions of
an advocate in a criminal prosecution, only qualified immunity shields the
prosecutor acting as a complaining witness in presenting a judge with a
supporting affidavit to establish probable cause for an arrest. This is because the
common law did not recognize absolute immunity for such functions when the
civil-rights statute was passed in 1871. Kalina, 522 US. at 123-24, 118 S.Ct. 502
(citing Imbler, 424 US. at 410, 96 S.Ct. 984); ?id. at 127 & n. 14, 118 S.Ct. 502
(citingMalleyv. Briggs, 475 US. 335, 340-41, 1068.Ct.1092, 89L.Ed.2d271
(1986)). We must now recognize that beyond those functions historically
recognized as absolutely immune at common law, qualified and only qualified
immunity exists. [Miller v Nevada, United States Court ofAppeals, Ninth
Circuit, No. 01-15491. Decided: July 09, 2003
In regard to the above, cited in Miller v Nevada, Plaintiff asks this Court to

consider the facts discussed earlier:
1. That omitting exculpatory evidence and submitting false evidence are not part
of ''traditional functions," and
2. That at least the specific acts of falsifying Affidavits as to Status of Minor
Child are not covered by immunity. These fraudulent Affidavits misled the court
to assume that EJV was left without anyone to care for him when his mother was
hospitalized, and that Plaintiff had no right to be heard in the matter pursuant to
NC GS 50A, UCCJEA 205 (a) and 7B-506 (b) or to other Constitutional and state
rights to reunification with her grandson.

19

Plaintiff does not see any justification for awarding immunity protection to
anyone who commits serious crimes, especially those carrying grave consequences whoever they are, whatever their role and whatever the precedent. The ninth circuit
agrees with Plaintiff (Hardwick v Vreeken) on this issue, ruling that "no law permits false
testimony." The Fourth Circuit has not yet addressed the issue specifically, instead acting,
as if caseworkers all have good intentions, never commit serious crimes, never lie under
oath nor have any other incentive than the well-being of a child -- or acting as if it doesn't
matter when they do.
12. Next, minor Clerical errors in the first October 27 Order include two on pages 2 and
3 as follows: EN is Plaintiff's grandson (not grandaughter). The alleged reasons for
removal of EN given by Dare and Currituck Counties were Neglect AND Dependency ,
not just neglect, as the Order states . In the June 20, 2018 order, the correct spelling of
one of the Officer's names is Sudduth, not Suddouth, according to the Police officer who
provided the name to Plaintiff and information on the Police Department's website.
13.

On page 3 of said October Order, paragraph 2, correctly stated, would say: that

"Plaintiff asserts that the state court's decision not to return EN to her custody and home
was based on false allegations, with Plaintiff not allowed a meaningful opportunity to
rebut said allegations." However it's worded otherwise, it should at least say that
Plaintiff expected EN to be reunited with Plaintiff who, according to 7B-101 was his
physical and legal custodian at the time he was removed.
14. Regarding the chastising of plaintiff on page 7 of the October Order, Plaintiff states
that this is a misunderstanding. Jennifer Vaughan, who had been too ill to file before the
statute of limitations expired, had requested to join the lawsuit, and Plaintiff did not

20

understand that she could not join and represent herself. She was in the process of
seeking assistance from a women's resource center. The order makes harsh assumptions
about Plaintiff which she believes are made out of context of full understanding of the
circumstances.

CONCLUSION
In conclusion, Plaintiff reiterates that the damages resulting from DSS attack on
her reputation with false, and unsubstantiated allegations, and their and other Defendants'
actions in blocking her Constitutional right to rebut those allegations go far beyond
designating her as a respon,sible individual and affecting her ability to obtain
employment. The consolidated, orchestrated attack on Plaintiff's reputation and character
has depleted her finances, led to the loss of her house and property of over 20 years,
impeded her ability to help EN's mother get the treatment she needs and denied
Plaintiff's right to reunification with her grandson. These false accusations have been
repeated in orders and private conversations with agencies, judges, clerks of court,
doctors and others, continuing to denigrate Plaintiff, as if they were the truth. They have
certainly led to her name as a ~'Perpetrator" being included on a State Registry and her
grandson listed as "neglected" when he never was, except by DSS's removal.
For example in 2016 when plaintiff sought to adopt her grandson, DSS attorney,
on behalf of Defendants, wrote in an order, without providing any evidence to support its
"facts, " that Plaintiff never even advocated for her daughter's health treatment, that she
wouldn't have taken her grandson to the pediatrician ifDSS hadn't gotten involved, even
though the evidence Plaintiff has presented to the court many times contradicts those lies.
[Exhibit 14 and the appointment letter with Dr. O'Shannick provided earlier, for

21

examples]. The Order then concludes that Plaintiff was too "unfit" or "inappropriate" to
adopt her grandson, which coincides with one of the purposes stated for the Central
Registry, to notify those making decisions about adoptions of "perpetrators" on their list.
The RI designation, followed by Director Romm's failure to provide Plaintiff with
the alleged "evidence" that she and/or her cohorts used to accuse Plaintiff of"serious
neglect" was never substantiated by any facts or evidence, and it was never removed from
the Petition on record. How was Plaintiff to defend herself against so-called evidence she
was never informed of pursuant to requirements of 7B-320 [Exhibit 13]?
Plaintiff alleges that Romm didn't provide that required evidence because there

was no evidence. Instead, there were clear grounds for a complete mistrial, and yet
Romm, Matusko and all those who falsely accused plaintiff are going to get away with
their uncorrected errors and crimes against Plaintiff, and others down the road, unless
Plaintiff if given the opportunity to have all violations and supporting evidence examined.
The irony of this case is that Plaintiff committed no crime, violated no laws and
harmed no one. Yet she and her family are the only ones being punished, while multiple
violators enjoy either absolute immunity or other protection of the courts and other
authorities Since when did this add up to justice and protection of Civil Rights?
Defendants' attorney now claims that DSS attorney Courtney Hull, herself, made
the determination of responsible individual, while. pointing out that an attorney cannot be
sued for damages. Certainly Defendants' attorney knows or should know that 7B-403 and
7B-320 state that the DSS Director must screen allegations, draw and verify the petition
and make the determination of serious neglect or responsible individual, which Hull had.
no legal right to do.

22

§ 7B-403. Receipt ofreports; filing ofpetition.
(a)
All reports concerning a juvenile alleged to be abused, neglected, or
dependent shall be referred to the director of the department ofsocial services for
screening. Thereafter, if it is determined by the director that a report should be
filed as a petition, the petition shall be drawn by the director, verified before an
official authorized to administer oaths, and filed by the clerk, recording the date
offiling.
Even if one argues that in this very serious act of accusing someone of neglecting
a child, putting that child in serious danger of harm from separation of those who love
and have cared for him since birth, a director may, nevertheless, have a designated
representative draw and verify the petition, that representative, however, does NOT
include anyone outside the agency. If Hull had been responsible for that RI and serious
neglect determination, then it would have been up to her to verify the petition, swearing
to it's accuracy. In Re T.R.P. has quite a lot to say about the gravity of the act of making
these sorts of allegations. In fact Currituck DSS' s current director, who was a CPS
supervisor at the time, signed that petition that makes the "serious neglect" allegation.

(b) The director may delegate to one or more members of his staff the authority to
act as his representative. The director may limit the delegated authority ofhis
representative to specific tasks or areas of expertise. The director may designate,
subject to the approval ofthe Commissioner ofLabor, additional personnel
outside his staff to issue youth employment certificates. [NC GS 108A-14 (b)].
[emphasis added].
Courtney Hull was, in 2013, on the staff of Twiford Law Firm in Pasquotank: County and
not a staff member of Currituck DSS.
The law is very clear not only about who is to draw and verify a petition, but also
that the Director has 5 days to notify the person designated as an RI - and provide that
person with the evidence she/he used to make that determination AND to notify the
designated person of his/her right to file a Petition for Judicial review and of other details

23

required by law. Defendants cannot honestly allege that they obeyed the laws.
Plaintiff argues that neither Vosburg nor Troxel apply to her case, except as
detailed above. She asserts that it is unjust to limit the damages she can recover from the
barrage of violations and assaults on her reputation and due process rights, especially
when she has spent all her money - lost her home - and been traumatized beyond repair
trying to get one judge - one court -or one oversight or law agency - to acknowledge the
crimes committed against her and her family and the results of those crimes.
The losses mentioned above don't begin to address the pain and suffering these
defendants have inflicted upon Plaintiff and her family or the consequences of removing
her grandson and adopting him to strangers, never allowing Plaintiff or his mother to see

him again - or even say goodbye. This unlawful adoption took place even as Plaintiff was
in the process of appealing her claim denying the legitimacy of the entire A/N/D cases
and termination of the mother's rights.
To conclude that the only damages Plaintiff can seek from DSS Defendants and
Matusko are specifically related to damage to reputation - and only then, if Plaintiff can
prove she lost employment because of her inclusion on a state list or registry that she
cannot even access -seems to be grossly unjust.
. The damage to Plaintiff's reputation began with Foltz's false allegations in the
initial Dare County Petition, which were carried over to the Currituck Petition , with the
latter adding its lies, and compounded by the way Dare and Currituck DSS unlawfully
handled those petitions and all the other initial and subsequent violations of laws (state
and federal) that violated Plaintiff's due process right to rebut those false allegations that
remain in the records and continue to violate Plaintiff's Constitutional rights.

24

Therefore Plaintiff respectfully requests correction of portions of the pretrial
orders in this case that misrepresent facts, Plaintiffs statements and status as EN' s
custodian, and reconsideration of decisions that misapply Troxel, Vosburg and
caseworker and judicial immunity, which too severely limit Plaintiffs right to damages.
This the 16th day of July, 2018.
Amended and Resubmitted with Amended Attachments
Listed and described as Exhibits on July

J 3 r~ 2018

~··~

Susan VaughM
613 Fifth Avenue, Unit 1
Greensboro, NC 27405
252-305-9992
[e-mail]

CERTIFICATE OF FILING AND

SEHVIC~

The undersigned, Plaintiff Susan Vaughan, certifies that on this day she
filed, via US Postal Service, the foregoing Motion for Reconsideration with the
US District Court, Eastern District, NC located on Middle St. in New Bern, NC
The undersigned further certifies that she served copies of said Motion on
the following attorneys for defendants, and on officers Sudduth and White by US
Postal Service, properly packaged and stamped, to the addresses noted below:
July 16, 2018
Served again, with Amendments and Amended Exhibits, on July
Christopher J. Geis
Womble Bond Dickinson
One West Fourth St.
Winston-Salem, NC 27101

Kathryn Shields
NC Department of Justice
PO Box 629
Raleigh, NC 27602 '

2018

Officers Mike Sudduth &
Chris White
c/o Kill Devil Hills Police Dept
102 Town Hall Dr.
Kill Devil Hills, NC 27948

s&.ut+
613 Fifth Avenue, Unit 1
Greensboro, NC 27405
252-305-9992