Underwood v. West Virginia Department of Health and Human Resources et al
MEMORANDUM OPINION AND ORDER granting defendants' 64 , 67 , 69 and 71 MOTIONS for Summary Judgment; and denying the plaintiff's 92 and 139 MOTIONS for Summary Judgment. Signed by Judge Joseph R. Goodwin on 5/28/2013. (cc: attys; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 2:11-cv-00506
THE WEST VIRGINIA DEPARTMENT
OF HEALTH AND HUMAN RESOURCES, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court are several motions for summary judgment. The defendants have
filed four motions for summary judgment: 1) a combined motion for summary judgment by
defendants Kathryn A. Bradley, Justin Castleman, John Doe(s), Mary Doe(s), Shelly Nicewarner,
Tzouri Oliver, and Unknown Employees of the Department of Health and Human Resources
[Docket 67]; 2) Mary Carper’s motion for summary judgment [Docket 64]; 3) John Najmuski’s
motion for summary judgment [Docket 69]; and 4) WVDHHR’s motion for summary judgment
[Docket 71]. All defendants filed a joint supplemental memorandum in support of their motions
for summary judgment [Docket 141]. The plaintiff filed a motion for summary judgment [Docket
92], and a supplemental motion for summary judgment [Docket 139] along with a supplemental
memorandum in support [Docket 140].
For the reasons described below, the defendants motions [Dockets 64, 67, 69, 71] are
GRANTED, and the plaintiff’s motions [Dockets 92, 139] are DENIED.
A. Factual History
This case arises from the plaintiff’s allegations that the defendants violated her
constitutional rights and negligently inflicted emotional distress to her in the process of removing
her children from her custody and later permanently terminating her parental rights.
The events that led to this case initially concerned a different child, M.H., who lived in
plaintiff Amanda Underwood’s household. M.H. is the daughter of Underwood’s live-in
boyfriend, Travis Harrell, and Kristy Imbach. Underwood and Harrell have two children together,
C.H.1 and C.H.2. On July 7, 2009, West Virginia Department of Health and Human Resources
(“WVDHHR”) employees Mary Carper (also a defendant in this action) and Andrew Brown
visited the home of Underwood and Harrell to speak with M.H. concerning allegations of abuse by
Imbach and Imbach’s boyfriend. According to Underwood, she asked them to return later when
Harrell would be home. Instead of doing so, the WVDHHR employees called the state police. The
state trooper arrived and Underwood allowed him and the WVDHHR employees in her home to
talk to M.H. WVDHHR observed the interactions of Underwood, M.H., C.H.1, and C.H.2.
On July 10, 2009, there was a hearing before Circuit Judge John C. Yoder concerning M.H.
(Am. Transcript [Docket 139-1] at 33-40). Assistant Prosecuting Attorney Kimberly Crockett
presented an Amended Temporary Order of Custody (“custody order”) that granted WVDHHR
temporary custody of M.H. Because Prosecutor Crockett then moved to orally amended the
proposed custody order to add C.H.1 and C.H.2. (Id. at 37). The court granted the motion to amend
(Id. at 39) over the objections of Mr. Harrell’s attorney Mr. Buck. (Id. at 38) (“In regard to other
children, we have absolutely no notice, I’m just completely bushwhacked as to how to stand up
and proceed with this when the only petition before us is regarding [M.H.] . . . I certainly object to
any kind of modification . . . At this time there’s no notice to [Mr. Harrell], not [sic] opportunity to
respond.”). At this time, there was no petition filed that mentioned C.H.1, C.H.2, or Underwood.
(See Am. Petition [Docket 139-1], at 1). At the end of the hearing, the court appointed Ms. Dalby,
who was not present, as counsel for Underwood. (Am. Transcript [Docket 139-1] at 40). Later that
day, Ms. Underwood’s children were removed from her home by the WVDHHR. The written
custody order, listing all three children and Underwood, was filed in the Circuit Court of Berkeley
County, West Virginia on July 13, 2009. (Am. Order of Temporary Custody [Docket 139-1], at
41-44). The second amended petition added C.H.1 and C.H.2 and included allegations of unfitness
against Underwood. The plaintiff alleges the petition was not filed until July 15, 2009, and the
defendants allege that it was docketed on July 13, 2009 even though the petition is stamped July
15, 2009 and the notarized signature verifying the petition is dated July 15, 2009. (Second Am.
Petition [Docket 141-4]; Docket Sheet [Docket 141-5]). The plaintiff argues the docket sheet entry
of the petition on July 13, 2009 is an error.
On July 20, 2009, a preliminary hearing was held before the Circuit Court. At this hearing,
the plaintiff contends WVDHHR and the children’s guardian ad litem agreed that the children
should be returned to Ms. Underwood’s legal and physical custody. The defendants, however,
dispute that Ms. Underwood was granted legal custody, alleging instead that she only received
physical custody and that WVDHHR retained legal custody subject to Ms. Underwood completing
a safety plan.
On July 27, 2009, one week after the children were returned to Underwood, Carper
instructed Underwood to bring the children to the Berkeley County Office of the WVDHHR. The
plaintiff alleges Carper threatened to have her arrested for kidnapping if she did not bring in the
children. (Pl.’s Supplemental Mem. Supp. Supplemental Mot. Summ. J. [Docket 140], at 6).
Underwood complied, and Ms. Carper then removed the children from Underwood’s custody.
There was no preliminary hearing regarding the events on July 27, 2009.
A third amended petition was filed in August 2009, adding a new allegation that
Underwood and Harrell failed to keep their children’s immunizations current. (Third Am. Petition
[Docket 139-2], at 9). On August 14, 2009 a hearing was held, and at this hearing, Underwood
admitted to the new immunization allegation in the third amended petition. (Transcript of August
14, 2009 Hearing [Docket 149-2], at 79-81). Underwood specifically waived her right to a full
evidentiary hearing. (Id. at 80-81). Based on this admission, the Court found that the children were
neglected and then began an improvement period for Underwood. (Id. at 81).
Underwood attempted to comply with the improvement period requirements to regain full
custody of her children. She was ultimately unsuccessful, and her parental rights were terminated
in November 2010. Underwood filed a Motion to Reconsider the termination, which the court
denied on May 3, 2011. In its order, the Circuit Court did acknowledge that WVDHHR had made
several serious legal errors, including the fact that both legal and physical custody of the children
were returned to Ms. Underwood on July 20, 2009, and therefore WVDHHR violated Ms.
Underwood’s rights by taking the children on July 27, 2009, without court ratification or setting a
date for a preliminary hearing to determine if the children were in imminent danger. (Order
[Docket 139-2], at 5). However, because Underwood had failed to find stable employment and
housing, show up for her visitation times, and comply with other requirements of the improvement
period, the court did not overturn the termination of her parental rights. (Id. at 7-8).
B. Procedural History
As described above, after the plaintiff’s parental rights were terminated in November 2010,
the plaintiff filed a motion to reconsider termination in Circuit Court on January 14, 2011, and it
was denied in May 2011. On June 30, 2011, the plaintiff appealed to the Supreme Court of Appeals
of West Virginia (“SCAWV”), alleging violations of the U.S. Constitution, the West Virginia
Constitution, and West Virginia Code § 49-6-9(f). On the same day, the plaintiff also filed a Writ
of Habeas Corpus. SCAWV denied the Writ of Habeas Corpus on September 8, 2011.
On September 26, 2011, SCAWV affirmed the Circuit Court’s termination of Ms.
Underwood’s parental rights. In that memorandum opinion, SCAWV found that the plaintiff’s due
process rights were not violated by the July 27, 2009 taking of her children because she received
only “physical custody on a probationary basis,” at the July 20, 2009 hearing. (SCAWV
Memorandum Decision [Docket 149-1], at 27). By entering into the safety plan, Underwood had
also “waived her right to a preliminary hearing” and therefore “no particular findings of imminent
danger were required as to her due to this arrangement.” (Id.). When Underwood failed to follow
the terms of the safety plan, WVDHHR was within its right to remove the children without having
a new petition and preliminary hearing. SCAWV further held that the plaintiff had waived any
alleged due process violations because she failed to raise the issue, despite being represented by
counsel at the time. (Id.). It additionally affirmed the termination of Underwood’s parental rights.
(Id. at 28).
The plaintiff filed this action on July 25, 2011. The plaintiff’s amended complaint names as
defendants: WVDHHR; John J. Najmuski, in his official capacity as Commissioner of WVDHHR;
Kathryn Bradley, Community Services Manager of the Berkeley/Jefferson/Morgan County
Offices of WVDHHR, in her individual capacity; Mary Carper, in her individual capacity; Justin
Castleman, in his individual capacity; Tzouri Oliver, in his individual capacity; Shelly
Nicewarner, in her individual capacity; Unknown Employees of WVDHHR and Supervisors of
Mary Carper, in their individual capacities; Mary Doe(s), in her individual capacity; and John
Doe(s), in his individual capacity.
The plaintiff’s amended complaint contains seven counts, and the first two were dismissed
by my earlier order [Docket 20]. Count Three asserts a claim under 42 U.S.C. § 1983 for a
violation of the plaintiff’s Fourteenth Amendment Due Process rights, and seeks compensatory
and punitive damages. The Complaint contains two counts labeled “Count Four.” The first Count
Four (hereinafter “Count Four (A)”) asserts a § 1983 claim for violation of the Fourth Amendment
protection against illegal search and seizure, and seeks compensatory and punitive damages. The
second Count Four (hereinafter “Count Four (B)”) seeks an order finding that WVDHHR is in
contempt of court based on a Consent Decree in a 1984 case (Gibson v. Ginsberg). The complaint
also includes two counts labeled count five. The first Count Five (hereinafter, “Count Five (A)”),
asserts that the West Virginia Abuse and Neglect Statute is an unconstitutional violation of the
Fourteenth Amendment. The second Count Five (hereinafter, “Count Five (B)”), asserts a claim
for “Negligent, Wanton, Reckless and Malicious Infliction of Emotional Distress.”
The defendants filed multiple motions for summary judgment in October 2012. The
defendants Kathryn A. Bradley, Justin Castleman, John Doe(s), Mary Doe(s), Shelly Nicewarner,
Tzouri Oliver, and Unknown Employees of the Department of Health and Human Resources filed
a combined motion for summary judgment [Docket 67]. The remaining defendants each filed
separate motions: Mary Carper [Docket 64], John Najmuski [Docket 69], and WVDHHR [Docket
71].1 Pursuant to the issues discussed at the pre-trial conference on November 19, 2012, the court
ordered the parties could file additional or supplemental dispositive motions and supporting
memorandum [Docket 138]. All of the defendants collectively filed a supplemental memorandum
[Docket 141]. The plaintiff also filed a supplemental motion for summary judgment [Docket 139]
and memorandum [Docket 140].
To obtain summary judgment, the moving party must show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, the court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the court will draw any permissible inference from the underlying facts in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
Although the court will view all underlying facts and inferences in the light most favorable
to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence
from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at
256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an
essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The nonmoving party must satisfy this burden of proof by offering more than a mere
The defendants initially filed these motions in redacted form, with the exhibits under seal. After I denied the
motions to seal for several documents [Docket 136], the defendants re-filed their motions. The re-filed versions of the
motions for summary judgment are: Carper [Docket 149], Najmuski [Docket 151], WVDHHR [Docket 153], Bradley
et al. [Docket 155]. When citing to the record, I will refer to the re-filed versions because they have unsealed
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252. Likewise,
conclusory allegations or unsupported speculation, without more, are insufficient to preclude the
granting of a summary judgment motion. See Felty v. Graves-Humphreys Co., 818 F.2d 1126,
1128 (4th Cir. 1987); Ross v. Comm=ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985),
abrogated on other grounds, 490 U.S. 228 (1989).
The defendants have filed multiple motions for summary judgment, and several of their
arguments are similar or apply equally to multiple defendants. Therefore, I will first address
arguments for summary judgment that apply to multiple claims and then proceed claim by claim,
noting when the reasoning differs for different defendants. I will address relevant arguments in the
plaintiff’s motions for summary judgment within my discussion of each claim.
A. Eleventh Amendment Immunity
The defendants WVDHHR and John Najmuski, in his official capacity as Commissioner of
WVDHHR, are entitled to Eleventh Amendment immunity from suit in federal court for damages.
The Eleventh Amendment provides: “The judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. It therefore preserves sovereign immunity of the states of the Union in federal
court. It is well settled that “this protection extends also to ‘state agents and state instrumentalities’
or stated otherwise, to ‘arms of the State’ and State officials.” Cash v. Granville Cnty. Bd. of Educ.,
242 F.3d 219, 222 (4th Cir. 2001) (citations omitted). An individual defendant employed thereby
and sued in his official capacity is also immune from suit in federal court under the Eleventh
Amendment. Id. I have previously held that WVDHHR is an arm of the state and thus entitled to
Eleventh Amendment immunity. Workman v. Mingo Cnty. Sch., 667 F. Supp. 2d 679, 684 n.7
(S.D. W. Va. 2009).
Given no evidence of state consent in this case,2 I FIND that the Eleventh Amendment
bars all claims for damages against WVDHHR and Najumski, in his official capacity.
B. Count Three: 42 U.S.C. § 1983 Fourteenth Amendment Violation
As the first two claims in Underwood’s amended complaint have already been dismissed, I
will begin with Count Three, which alleges a violation of Underwood’s Fourteenth Amendment
due process rights under 42 U.S.C. § 1983. Specifically, the plaintiff alleges that defendants
Bradley, Castleman, Oliver, Nicewarner, and Carper:
acting under color of state law and while employees of the
WVDHHR removed custody or caused the removal of custody of
[C.H.1 and C.H.2] from Ms. Underwood on July 27, 2009 without
prior notification to Ms. Underwood or her counsel, without prior
judicial authorization, without a hearing, without subsequent
judicial authorization or ratification, and without the consent of Ms.
Underwood who was in legal and physical custody of the said
(Am. Compl. [Docket 18], at ¶ 66). The plaintiff alleges this violated her due process rights under
the Fourteenth Amendment. The defendants argue this claim is collaterally estopped by SCAWV’s
September 26, 2011 opinion.
“Federal courts must give the same preclusive effect to a state court judgment as the forum
that rendered the judgment would have given it.” Sartin v. Macik, 535 F.3d 284, 287 (4th Cir.
The United States Supreme Court has determined that 42 U.S.C. § 1983 was not a Congressional abrogation
of Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332, 341 (1979). The Fourth Circuit has
determined that the West Virginia statute concerning liability insurance (W. Va. Code § 29-12-5) only waives
sovereign immunity from suit in state court. Westinghouse Elec. Corp. v. W. Va. Dep’t of Highways, 845 F.2d 468,
470-71 (4th Cir. 1988).
2008). This principle applies equally to federal suits based on 42 U.S.C. § 1983. Tincher v. Fink,
No. Civ.A. 2:03-0030, 2005 WL 1845319, at *7 (S.D. W. Va. Aug. 2, 2005) (noting that the
Supreme Court decided in Allen v. McCurry, 449 U.S. 90 (1980) that “issues actually litigated in a
state-court proceeding are entitled to the same preclusive effect in a subsequent federal § 1983 suit
as they enjoy in the courts of the State where the judgment was rendered.”) (quoting Migra v.
Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83 (1984)).
In West Virginia, collateral estoppel, also known as issue preclusion, requires that:
(1) The issue previously decided is identical to the one presented in
the action in question; (2) there is a final adjudication on the merits
of the prior action; (3) the party against whom the doctrine is
invoked was a party or in privity with a party to a prior action; and
(4) the party against whom the doctrine is raised had a full and fair
opportunity to litigate the issue in the prior action.
State ex rel. McGraw v. Johnson & Johnson, 226 W. Va. 677, 688 (2010) (quoting State v. Miller,
194 W. Va. 3 (1995)).
The plaintiff argues preclusion is not appropriate in this instance. She argues that SCAWV
decision was “expressly limited . . . to whether or not Ms. Underwood was provided the due
process required by the state procedural rules and related statutes for child abuse and neglect. It
made no analysis of constitutional law, the constitutional due process requirements in parental
termination proceedings or reasonable search and seizure, or the constitutional sufficiency of the
state statute or procedural rules.” (Pl.’s Resp. Opp’n Def. Mary Carper’s Mot. Summ. J. [Docket
123], at 9). She believes this argument is supported by the fact that SCAWV issued a
Memorandum Decision instead of an Opinion, and no oral argument was held in this case. (Id. at
9-10). She further alleges that the lack of oral argument means she did not receive a full and fair
opportunity to litigate the issue, and hence claim preclusion is not applicable. (Id. at 11). The
plaintiff also makes a smattering of additional arguments, none of which are well-developed or
In her supplemental motion and memorandum for summary judgment, the plaintiff adds to
her argument that the SCAWV decision should not preclude any of her claims. She notes first that
issue preclusion applies “only if the factual issue in the original and succeeding proceeding are
identical [Restatement (Second) of Judgments, §27 (1982)], and ‘where the controlling facts and
applicable legal rules remain unchanged.’ Internal Revenue v. Sunne, 333 U.S. 591 (1948).” (Pl.’s
Supplemental Mem. Supp. Supplemental Mot. Summ. J. [Docket 140], at 15). The plaintiff
believes that the “newly produced transcript of July 10, 2009 contains facts relevant and material
to Plaintiff’s appeal in the WVSCA” because they support her argument “that her due process
rights were violated and that she was subjected to fundamentally unfair procedures.” (Id.).
Second, the plaintiff argues that the public interest exception to claim preclusion should
apply in this instance. That exception applies when “[t]here is a clear and convincing need for a
new determination of the issue (a) because of the potential adverse impact of the determination on
the public interest or the interests of persons not themselves parties in the initial action . . . .” (Id. at
16) (citing Restatement (Second) of Judgments § 28). The plaintiff argues that SCAWV’s ruling
“that the lower court does not have to comply with the requirements of WV child abuse statute and
that waiver of constitutional due process rights can be implied in the absence of any affirmative
action by the parent has a potential adverse impact on the public interest and the interest of other
parents subject to abuse and neglect petitions.” (Id.). For example, the plaintiff argues that the
statute does not allow for physical and legal custody to be split, and even if it did, it was
inappropriate for SCAWV to find Underwood waived her hearing right and agreed to receiving
only physical custody “even though Ms. Underwood did not speak at the hearing and no inquiry
was made of her as to her intent to waive her right to a preliminary hearing and to consent to the
Department retaining custody of her children . . . .” (Id. at 16-17).
Finally, in her response to the defendants’ supplemental motion for summary judgment,
the plaintiff adds to her argument that she did not have a full and fair opportunity to litigate her due
process claim in her appeal. The plaintiff alleges that SCAWV lacked “material evidence,”
because it was not presented with the full transcript of the July 10, 2009 hearing. Underwood could
not “have articulated the grounds for violation of her due process rights or asked for sanctions for
the bad faith and deceit of the Department and its attorney, if the case had proceeded to termination
of parental rights at all.” (Pl.’s Resp. Defs.’ Supplemental Mot. Summ. J. [Docket 146], at 10).
Despite the plaintiff’s arguments to the contrary, all four elements of claim preclusion are
present here. SCAWV decided that Underwood did not receive legal custody of her children on
July 20, 2009, but instead received only physical custody that was conditioned on Underwood
meeting the terms of the agreed safety plan. (SCAWV Memorandum Decision [Docket 149 Ex. E],
at 2). Although there is no provision of the statute speaking to whether legal and physical custody
can be split, clearly SCAWV has ruled that it can. When Underwood did not satisfy the terms of
the safety plan, WVDHHR was within its rights to remove the children from Underwood’s
physical custody without an additional petition or hearing. (Id.). Therefore, there was “no violation
of [Underwood’s] due process rights in relation to the alleged illegal taking of the petitioner’s
children on July 27, 2009, and any related allegations concerning the lack of a new petition or an
associated preliminary hearing as required by statute or the Rules of Procedure for Child Abuse
and Neglect Proceedings.” (Id. at 2-3).
This is precisely the same issue Underwood argues under Count Three, when she alleges
the removal of her children on July 27, 2009 violated her due process rights because there was no
consent, pre-taking judicial authorization, or post-taking judicial ratification. Despite the
plaintiff’s argument that the court did not reach any constitutional violations, the opinion clearly
shows a ruling that the actions of the state actors violated neither the United States Constitution nor
the West Virginia neglect and abuse statutes. SCAWV’s decision was a final adjudication on the
merits; they denied her appeal and specifically found her due process rights were not violated.
Underwood herself brought the appeal, so she was clearly a party to the action being given
preclusive effect. Underwood also had a full and fair opportunity to litigate this issue in her appeal
to SCAWV. She herself brought up the issue of due process violations and she had the opportunity
to argue it in her briefing.
I do not find that SCAWV’s lack of the July 10, 2009 transcript hearing means Underwood
did not receive a full and fair opportunity to litigate. The hearing does show there was no verified
petition filed prior to the court awarding WVDHHR temporary custody of C.H.1 and C.H.2, and
that the order of temporary custody on July 10, 2009 was orally amended to include C.H.1, C.H.2,
and Underwood, but these are not “controlling facts” which compel a different outcome. The
plaintiff argues this contributes to her earlier discussion of how the verified petition claiming
abuse by Underwood to C.H.1 and C.H.2 may not have been filed until July 15, 2009, in apparent
contravention of the West Virginia abuse and neglect statute.3 The problem is that Underwood
A court order of temporary custody may be issued before a verified petition (describing the imminent danger)
is filed, if the petition is filed within two judicial days after removing the children. At the expiration of those two days,
the child must be returned unless the petition has been filed. West Virginia Code § 49-6-3(c) reads:
If the emergency taking is ratified by the judge or referee, emergency custody of the child
or children shall be vested in the department until the expiration of the next two judicial
days, at which time any such child taken into emergency custody shall be returned to the
notified SCAWV of the timing of the petition in her briefs.4 The transcript does not add enough to
overturn SCAWV’s decision, because they could not have found WVDHHR had legal custody of
the children on July 27, 2009 if WVDHHR lost statutory authority to hold them when the petition
was filed late.5
I also decline to apply the public interest exception, as the plaintiff has not demonstrated
that there is a “clear and convincing need” for the issue to be decided again. Admittedly, the facts
as presented by Ms. Underwood are very concerning. She was not a party when the petition was
orally amended at the July 10, 2009 hearing, originally regarding Underwood’s boyfriend’s child
with another woman, to add C.H.1 and C.H.2. A lawyer representing Mr. Harrell (Underwood’s
boyfriend and M.H.’s father) was present at this hearing and had the opportunity to object to
adding C.H.1 and C.H.2, but Underwood was not, as she was not even a party until part-way
through the hearing. C.H.1 and C.H.2 were removed from Underwood’s custody on July 10, 2009
pursuant to the orally amended custody order, which itself was not filed until July 13, 2009, and
supported by a petition that was filed either July 13, 2009 or July 15, 2009. Though the date of the
petition filing may not by itself violate the due process clause, as the defendants argue, it is critical
custody of his or her parent or guardian or custodian unless a petition has been filed and
custody of the child has been transferred under the provisions of section three of this
Further, under West Virginia Code § 49-6-9(f), “[a]ny retention of a child or order for retention of a child not
complying with the time limits and other requirements specified in this article shall be void by operation of law.”
“The first petition in which Amanda Underwood, [C.H.1 and C.H.2] were named, however, was styled
Second Amended Petition and was not filed or even notarized until July 15, 2009 and did not contain allegations
consistent with imminent danger.” (Pet. For Appeal by Amanda Underwood, Br. of Pet’r [Docket 149-1], at 75)
(internal citations omitted); “Ms. Underwood’s exercise of her fourth amendment rights . . . so angered the department
workers, that they submitted an order of emergency custody of Ms. Underwood’s children to the court without a
supporting Petition on July 10, 2009. The subsequent petition, which was not filed or notarized until July 15, 2009 did
not contain any facts or allegations supporting imminent danger as to Ms. Underwood . . . .” (Id. at 95-96).
This view of the SCAWV’s decision is supported by the plaintiff’s own supplemental memorandum
supporting summary judgment: “The fact that the State Supreme Court failed to find that the order of July 10, 2009
issued against a non-party did not violate the statute or due process surely suggests that the statute is unconstitutional
on its face.” (Pl.’s Supplemental Mem. Supp. Supplemental Mot. Summ. J. [Docket 140], at 19).
to determining whether WVDHHR had valid legal custody of the children on July 20, 2009, such
that they could legally retain legal custody as part of the safety plan. See W. Va. Code § 49-6-3(c).
Adding to the confusion, there is no provision of the West Virginia abuse and neglect statute that
speaks to granting WVDHHR emergency custody pursuant to a court order but without a filed
petition.6 At the initial hearing on July 20, 2009, no findings of imminent harm pursuant to West
Virginia Code § 49-6-3(b) were made as to Underwood, no statement was made by her concerning
her waiver of her right to a preliminary hearing, and no discussion was made of the implications of
entering into a “safety plan.” (See Transcript of July 20, 2009 Hearing [Docket 149-1], at 4-20).
WVDHHR then retracted her physical custody on July 27, 2009, without any process.
These issues, though serious, are not enough for me to disturb the considered judgment of
SCAWV.7 Therefore, I FIND that Count Three is precluded by SCAWV’s September 26, 2011
C. Count Four (A): 42 U.S.C. § 1983 Fourth Amendment Violation
West Virginia Code § 49-6-3(a) states that “[u]pon the filing of a petition, the court may order that a child
alleged to be an abused or neglected child be delivered for not more than ten days into the custody of the state
department . . . .” West Virginia Code § 49-6-3(b) speaks to the court’s authority to extend WVDHHR’s custody when
there exists imminent danger to the child, if the court has a preliminary hearing and makes several enumerated
findings. West Virginia Code § 49-6-3(c) allows a child protective service worker to take custody of a child without a
court order if that child “in the presence of a child protective service worker, be in an emergency situation which
constitutes an imminent danger to the physical well-being of the child or children [as defined in section 3, article 1],”
provided the taking be ratified by judicial order after, and that such emergency custody shall last only two days unless
a petition has been filed and custody transferred to WVDHHR under West Virginia Code § 49-6-3. West Virginia
West Virginia Code § 49-6-9(a) allows for a law-enforcement officer to take custody of a neglected or abused child
without a court order if the child is abandoned or emergency medical treatment is necessary, pursuant to restrictions
contained in the other sections of § 49-6-9. These appear to be the only custody options, as West Virginia Code §
49-6-9(f) states: “No child shall be taken into custody under circumstances not justified by this section or pursuant to
section three of this article without appropriate process. Any retention of a child or order for retention of a child not
complying with the time limits and other requirements specified in this article shall be void by operation of law.”
The use of the public interest exception “must be the rare exception . . . Thus it is important to admit an
exception only when the need for a redetermination of the issue is a compelling one.” Restatement (Second) of
Judgments § 28, Comment g.
Count Four (A) alleges a violation of Underwood’s Fourth Amendment right under 42
U.S.C. § 1983 from Mary Carper’s actions on July 27, 2009. Specifically, the plaintiff alleges
Carper, “while knowing that the WVDHHR did not have judicial or statutory authority to remove
the custody of [C.H.1 and C.H.2] from Ms. Underwood, required Ms. Underwood to bring the
children to the WVDHHR building in Berkeley County, WV under threat of arrest for kidnapping,
where Ms. Carper took illegal custody of said children.” (Am. Compl. [Docket 18], at ¶ 77). The
plaintiff alleges defendant Carper “acted with malicious intent, reckless indifference and callous
disregard for the rights of Ms. Underwood,” which caused Underwood harm. (Id. at ¶ 78).
It is unclear from the wording of the complaint whether Underwood is alleging her Fourth
Amendment rights were violated or her children’s Fourth Amendments rights were violated. The
Fourth Amendment protects individuals from “unreasonable searches and seizures by government
officials and those private individuals acting as ‘instrument[s] or agent[s]’ of the Government.”
United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003). A Fourth Amendment seizure of a
person occurs when a reasonable person would believe he/she was not free to leave, “in view of all
the circumstances surrounding the incident.” United States v. Mendenhall, 446 U.S. 544, 554
To the extent Underwood claims harm from her children being taken into allegedly illegal
custody and unable to leave WVDHHR custody, this claim fails as a matter of law. The Fourth
Amendment right to be free from unreasonable government seizures is a personal one. See
Alderman v. United States, 394 U.S. 165, 174 (1969) (“Fourth Amendment rights are personal
rights which, like some other constitutional rights, may not be vicariously asserted.”); see also
Gedrich v. Fairfax Cnty. Dep’t of Family Servs., 282 F.Supp.2d 439, 468 (E.D.Va. 2003) (finding
that only the child could raise a Fourth Amendment violation claim relating to her custody).
Further, even if this claim had been properly brought, Carper would be entitled to qualified
immunity. 8 If Underwood intended to state a claim that her Fourth Amendment rights were
violated by Carper’s threat of arrest, this claim fails because Underwood was not seized.
Therefore, I FIND that there is no genuine issue of material fact as to this claim and award
judgment in favor of the defendant Mary Carper on this count.
D. Count Four (B): Enforcement of Consent Decree in Gibson v. Ginsberg
Count Four (B) seeks a finding that WVDHHR is in contempt of the Amended Consent
Decree of June 8, 1984 in Gibson v. Ginsberg, Case No. 78-2375 as well as enforcement of the
Consent Decree. The plaintiff earlier filed a motion in the case, now called Gibson v. Allen, which
Judge Copenhaver ruled on. No. 2:78-2375, 2011 WL 2214919 (S.D. W. Va. June 3, 2011). Judge
“Government officials performing discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Price v. Sasser, 65 F.3d 342, 345 (4th Cir. 1995) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Whether qualified immunity applies depends on “whether a constitutional
violation occurred and . . . whether the right violated was clearly established.” Merchant v. Bauer, 677 F.3d 656, 661
(4th Cir. 2012). The court may address these two elements in any order. Id. “A Government official's conduct violates
clearly established law when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear’ that
every ‘reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 131
S.Ct. 2074, 2083 (2011). Although a case exactly on point is not required, “existing precedent must have placed the
statutory or constitutional question beyond debate.” Id.
The SCAWV determined that Underwood did not have legal custody of her children on July 27, 2009. A
reasonable official could therefore believe that when the state retains legal custody, it can rescind physical custody
without violating the Fourth Amendment. Rivera v. Mattingly, No. 06 Civ. 7077(TPG), 2011 WL 4344422, at *11
(S.D.N.Y. Sept. 12, 2011) (finding the plaintiffs’ Fourth Amendment claim failed as a matter of law because they
could provide no Second Circuit cases “holding that Fourth Amendment seizures occur when foster children in the
state’s legal custody are moved from one foster home to another.”); A.C. v. Mattingly, No. 05 CV 2986(TPG), 2007
WL 894268, at *5-6 (S.D.N.Y. Mar. 20, 2007) (finding no Fourth Amendment violation because the state retained
legal custody of the infant plaintiffs); Hunt v. Green, 376 F. Supp. 2d 1043, 1057-58 (D.N.M. 2005) (noting that
“[t]here are good reasons to require a warrant or court order when . . . the state is removing children from parents or
others who have legal custody,” but that “[t]here is no such compelling reason for judicial action where the state is
changing foster parents or physical guardians,” because this would “largely erase the distinction between legal and
physical custody”); id. at 1058 n.5 (recognizing “the lack of case law discussing the constitutional implications of a
state changing the placement of children in the state’s legal custody,” and analogizing to cases regarding the rights of
prisoners); Gedrich v. Fairfax Cnty. Dep’t of Family Servs., 282 F. Supp. 2d 439, 469-70 (E.D. Va. 2003) (finding no
Fourth Amendment violation for confining plaintiff minor child when the state had legal custody).
Copenhaver ruled Underwood could not recover under the Consent Decree because she is not part
of the class the Consent Decree covers. Id. at *6-7. Specifically, Judge Copenhaver found that:
[c]overage is thus confined, inter alia, to all parents and their children ‘who
are residents’ in 1979. . . . Both children are under five years of age.
[Underwood] was not their parent, and neither she nor the children were
apparently residents of the state, on either January 8, 1979, class
certification date or the June 8, 1984 Amended Consent Decree date.
Neither the movant nor her children are thus included within the class
definition found in the Amended Consent Decree. They are hence
prohibited from seeking relief for any contumacious conduct committed by
those falling subject to its terms.
Id. at *7.
The defendant WVDHHR argues that this count is barred by claim preclusion. Federal law
determines the preclusive effect of a prior federal judgment. Taylor v. Sturgell, 553 U.S. 880, 891
(2008) (“The preclusive effect of a federal-court judgment is determined by federal common
law.”); see also Shoup v. Bell & Howell Co., 872 F.2d 1178, 1179 (4th Cir. 1989). Federal claim
preclusion has three requirements:
1) the parties must be the same or in privity with the original parties;
2) the claims in the subsequent litigation must be substantially the
same as those in the prior litigation; and 3) the earlier litigation must
have resulted in a final judgment on the merits.
Shoup, 872 F.2d at 1179 (citing Restatement (Second) of Judgments § 19 (1982)). The first two
elements are clearly present here. Because the original Gibson v. Ginsberg case was brought
against several officials in the West Virginia Department of Welfare, precursor to WVDHHR,
back in 1978, when Underwood filed her petition, she named as successors to those positions: John
J. Najmuski, Kathryn A. Bradley, Mary Carper, and unknown supervisors of Mary Carper. The
defendants in this case are: WVDHHR; John J. Najmuski, Commissioner of WVDHHR; Kathryn
Bradley, Community Services Manager of the Berkeley/Jefferson/Morgan County Offices of
WVDHHR; Mary Carper; Justin Castleman, supervisor to Carper; Tzouri Oliver, employee of
WVDHHR; Shelly Nicewarner, employee of WVDHHR; and Unknown Employees of WVDHHR
and Supervisors of Mary Carper; Mary Doe(s); and John Doe(s). Underwood’s petition had
several counts, the first of which sought a finding that the defendants were in contempt of the
Amended Consent Decree and an injunction prohibiting WVDHHR from retaining custody of
C.H.1 and C.H.2, which are identical to Underwood’s request in Count Four (B).
The third element is that the judgment be on the merits. Federal Rule of Civil Procedure
41(b) grants district courts “discretion to ‘otherwise specif[y] that a dismissal is not ‘an
adjudication upon the merits,’ i.e., that it is a dismissal without prejudice.” Payne ex rel. Estate of
Calzada v. Brake, 439 F.3d 198, 204 (4th Cir. 2006). “A dismissal with prejudice is a complete
adjudication of the issues presented by the pleadings and is a bar to a further action between the
parties. Conversely, a dismissal without prejudice operates to leave the parties as if no action had
been brought at all.” McLean v. United States, 566 F.3d 391, 407 (4th Cir. 2009) (internal
quotations and citations omitted). Accordingly, the distinction between the two forms of dismissal
“really pertains only to claim preclusion and issue preclusion . . . .” Id.
Judge Copenhaver declined to reopen the case and therefore denied the motion for an order
to show cause. He also ruled that “[t]he denial is without prejudice to movant’s pursuit of any other
available remedies.” Gibson, 2011 WL 2214919 at *7. A plain reading of Judge Copenhaver’s
opinion indicates that his denial of the motion was on the merits as to the Gibson claim (Count One
of her petition),9 but without prejudice as to Underwood’s other claims. Judge Copenhaver found
specifically that Underwood was not in the class definition in the Amended Consent Decree based
on the age of her children, an immutable characteristic. He accordingly did not reopen the case
Judge Copenhaver found Count Four to be “duplicative in all respects of Count One.” Gibson, at *5.
Gibson v. Allen to allow Underwood to proceed enforcing the Amended Consent Decree. The
Gibson claim was not the only remedy Underwood sought, however. Count Two of Underwood’s
petition sought a declaratory judgment that WVDHHR’s removal of the children violated her First,
Fourth, Fifth, Eighth, and Fourteenth Amendment rights. Count Three sought an injunction
prohibiting WVDHHR from retaining custody of the children. Count Five alleged negligent and
intentional infliction of emotional distress. It is clear that Judge Copenhaver intended the denial to
be without prejudice as to these other claims because he did not reach their merits.
Therefore, I FIND that the plaintiff’s Count Four (B) is precluded by Judge Copenhaver’s
earlier ruling that she is not a part of the Gibson class.
E. Count Five (A): The West Virginia Abuse and Neglect Statute is Unconstitutional
and/or Unconstitutional as Applied
The plaintiff alleges that West Virginia’s procedure for abuse and neglect in Chapter 49 of
the West Virginia Code and Rules of Appellate Procedure is unconstitutional and/or
unconstitutional as applied to her because it creates a substantial risk of error and no meaningful
review. (Am. Compl. [Docket 18], at ¶ 86). The plaintiff notes that parents have a liberty interest in
raising their children and therefore must receive due process when their parental rights are
terminated. The test for determining what process is due balances: “the private interests affected
by the proceeding, the risk of error created by the state’s chosen procedure, and the countervailing
government interest supporting use of the challenged procedure.” (Id. at ¶¶ 83-85). The plaintiff
alleges that “West Virginia Code § 49-6-1 et seq. fails to require clear and convincing evidence of
unfitness at the time of termination of parental rights as required by Santosky v. Kramer,
Commissioner, Ulster County Department of Social Services, 455 U.S. 745 (1982).” (Id. at ¶ 87).
The plaintiff argues that the only basis for the state court finding her children were neglected was
her admission in court that she had missed a vaccination due to her inability to pay for a missed
appointment. (Id. at ¶ 89). The plaintiff contends that the court failed to find that a missed
vaccination “constituted abuse and neglect by clear and convincing evidence or any other
standard,” and that “[w]hether or not any particular act of a parent meets the requirements of abuse
and neglect is a legal determination to be made by the court not the parent particularly a parent who
is under duress due to the removal of her children by the state.” (Id. at ¶¶ 90, 94). The plaintiff
objects to the fact that “no evidence was presented that the child suffered any harm or was likely to
suffer from the missed vaccination.” (Id. at ¶ 93). Finally, the termination of her parental rights in
November 2010 was made without any finding of unfitness, or if a finding of unfitness was made,
it was based solely on Underwood’s admission instead of a judicial determination that the missed
vaccination constituted abuse and neglect. (Id. at ¶¶ 95-96).
The plaintiff has alleged several other defects with the West Virginia abuse and neglect
procedures, yet none of those were mentioned in her amended complaint in Count Five (A)
[Docket 18]. For example, in her memorandum supporting her motion for summary judgment, the
plaintiff complains of the lack of a pre-removal notification and/or hearing and cites extensively
from Gibson. ([Docket 93], at 13-19). Further, in her supplemental memorandum for summary
judgment, the plaintiff argues that “[w]here the WVSCA has found that the court or the
Department can differentiate between legal and physical custody and uses this to justify lack of
due process, the statute is constitutionally insufficient in that it fails to put parents on notice of this
distinction and the consequences of such distinction such as the finding by the WVSCA in this
case.” ([Docket 140], at 19). Not only does this not appear to allege a violation of a specific part of
the Constitution, but also it is not mentioned in the plaintiff’s amended complaint, nor has the
plaintiff attempted to amend her complaint after SCAWV issued its decision. Because these issues
were not discussed in the amended complaint as part of a facial or as-applied challenge to the
statute, I will not consider them on summary judgment. S. Walk at Broadlands Homeowner’s
Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (“It is
well-established that parties cannot amend their complaints through briefing or oral advocacy.”);
see also Anderson v. Donahoe, 699 F.3d 989, 997-98 (7th Cir. 2012) (noting that briefs for
summary judgment cannot amend the complaint, even if those facts are technically in the
complaint, because they were contained in another count and did not give the defendant fair notice
of the claims alleged they are not asserted).
“An as-applied challenge attacks the constitutionality of a statute ‘based on a developed
factual record and the application of a statute to a specific person.’” Doe v. Va. Dep’t of State
Police, No. 11-1841, 2013 WL 1496937, at *10 (4th Cir. April 12, 2013) (quoting Richmond Med.
Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009)). “By contrast, a litigant asserting a
facial challenge contends that a statue always operates in an unconstitutional manner.” Id. (citing
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)). To succeed on a
facial challenge, the litigant must “establish that no set of circumstances exists under which the
Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).
The defendants first argue that the court should abstain from ruling on the merits of this
claim because “[i]ssues of comity and federalism demand that where a Plaintiff has an adequate
remedy at law to raise constitutional challenges during a state action, federal courts should abstain
from deciding those issues.” (Def. WVDHHR’s Mem. Supp. Mot. Summ. J. [Docket 72], at 13).
The defendants argue that because the plaintiff could have raised their federal claims in the state
proceeding, “abstention and dismissal of the federal claims in this lawsuit are appropriate.” (Id. at
14). The defendants rely chiefly on Moore v. Sims, 442 U.S. 415 (1979) for their abstention
Moore was an application of Younger abstention, which has a three-part test in the Fourth
Circuit: “(1) there is an ongoing state judicial proceeding, (2) the proceeding implicates important
state interests, and (3) there is an adequate opportunity to present the federal claims in the state
proceeding.” Emp’rs Res. Mgmt. Co., Inc. v. Shannon, 65 F.3d 1126, 1134 (4th Cir. 1995).
Additionally, “[a]bstention from the exercise of federal jurisdiction is the exception, not the rule.”
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). Abstention
is “an extraordinary and narrow exception to the duty of a District Court to adjudicate a
controversy properly before it.” Cnty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188
Here, the state court proceeding is no longer pending. The West Virginia Supreme Court of
Appeals has rendered their decision, and the defendants assert the plaintiff did not appeal that
decision. See Dostert v. Neely, 498 F. Supp. 1144, 1151-52 (S.D. W. Va. 1980) (finding that
Younger abstention is applicable until the state proceedings are final, and that “such finality will
not be achieved until review in the United States Supreme Court either has been concluded or is no
longer possible.”). The extent to which abstention might have been warranted prior to the
expiration of the plaintiff’s time to appeal the SCAWV’s September 2011 decision to the United
States Supreme Court is a moot question. Comity and federalism can be served by giving the state
court’s decision proper preclusive effect under West Virginia law.
The defendants have also argued that the plaintiff’s claim fails on its merits. They point out
that although the plaintiff’s complaint mentions the entire procedures in Chapter 49 of the West
Virginia Code and Rules of Appellate Procedure, the only specific problem argued is that it does
not require clear and convincing evidence of unfitness at the time of termination, in violation of
Santosky v. Kramer, 455 U.S. 745 (1982). The defendants argue that by its very text, West Virginia
Code 49-6-2(c) does, however, require clear and convincing evidence:
(c) In any proceeding pursuant to the provisions of this article, the
party or parties having . . . parental rights . . . shall be afforded a
meaningful opportunity to be heard . . . . The petition shall not be
taken as confessed. A transcript or recording shall be made of all
proceedings unless waived by all parties to the proceeding. The
rules of evidence shall apply. Where relevant, the court shall
consider the efforts of the state department to remedy the alleged
circumstances. At the conclusion of the hearing, the court shall
make a determination based upon the evidence and shall make
findings of fact and conclusions of law as to whether such child is
abused or neglected and, if applicable, whether the parent, guardian,
or custodian is a battered parent, all of which shall be incorporated
into the order of the court. The findings must be based upon
conditions existing at the time of the filing of the petition and proven
by clear and convincing proof.
(emphasis added). Therefore, the defendants argue the statute is constitutional on its face.
The plaintiff makes only one argument relating to the facial constitutionality of the “clear
and convincing” evidence provision. She alleges that although the statute does say it requires clear
and convincing evidence, this provision can be waived. She bases this on the face that SCAWV
“refused to even address the failure of the circuit court to make the findings required in W.Va.
Code § 49-6-2(c) and that the missed vaccination constituted neglect by clear and convincing
evidence.” (Pl.’s Resp. Opp. Defs.’ Supplemental Mot. Summ. J. [Docket 146], at 11). This
argument, however, goes to whether the statute is constitutional as applied, as the statute itself
does not make the clear and convincing evidence standard waivable.
I FIND that the statute is constitutional on its face, as it requires clear and convincing
evidence to support a finding that a child is abused or neglected, in accordance with Santosky v.
Kramer, 455 U.S. 745 (1982).
The defendants then argue the statute is constitutional as applied to Underwood. At the
August 14, 2009 hearing concerning the third amended petition, the plaintiff waived her right to a
contested adjudication hearing and admitted to the medical neglect allegation in the third amended
petition. The court noted Underwood’s waiver of her right to a contested adjudication, and then
found based on her admission that the children were neglected. The defendants allege that the
statute requires clear and convincing evidence but “does not specify any particular manner or
mode of testimony or evidence by which the [DHHR] is obligated to meet this burden.” Syl. pt. 1,
In the Interest of S.C., 168 W. Va. 366 (1981). A judicial admission meets the burden of proof, and
therefore the process as applied to Underwood did violate her due process rights.
Here, the plaintiff’s earlier argument about the lack of clear and convincing evidence is
relevant. The plaintiff argues:
WVDHHR misapprehends the issue. It is not whether or not Ms.
Underwood honestly answered that she missed a vaccination as the
petition alleged but whether or not the court found, by clear and
convincing evidence that this made Ms. Underwood an unfit parent.
The burden of that finding is on the court not on Ms. Underwood.
Even if Ms. Underwood had required the Department to prove that
she missed the vaccination the court would still have been required
to make a finding that this constituted clear and convincing evidence
that she was an unfit parent. The court at no time made that finding.
([Docket 124], at 16). The plaintiff notes that the statute defines a “neglected child” to be a child
“[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability
of the child’s parent . . . to supply the child with necessary . . . medical care . . . when such refusal,
failure or inability is not due primarily to a lack of financial means on the part of the parent . . . .”
W. Va. Code § 49-1-3(11)(A)(i). The plaintiff contends that WVDHHR “did not introduce any
evidence that Ms. Underwood intentionally missed the vaccinations or that the missed vaccination
was not due to her inability to pay the doctor.” (Pl.’s Resp. Opp. Defs.’ Supplemental Mot. Summ.
J. [Docket 146], at 9). The plaintiff believes the court could not find the children to be neglected
based on clear and convincing evidence because no evidence was provided on all elements of
The fatal defect with this argument is that it ignores what was actually said during the
August 14, 2009 hearing. To understand how the plaintiff’s argument fails, I will first review the
relevant portion of the transcript:
THE COURT: Ms. Dalby, are you ready to proceed?
MS. DALBY: Your Honor, my client’s willing to admit to the
medical neglect, the new allegation that’s in here and ask for an
improvement period . . .
THE COURT: [To Ms. Dalby] [Y]our client’s prepared to admit
essentially medical neglect with respect to the third amended
petition or not?
MS. DALBY: Yes, Your Honor.
THE COURT: Okay. Why don’t you go ahead with that?
MS. DALBY: And you’ve now had an opportunity today, in the last
few minutes, to look at the new amended allegation number 20, is
MS. UNDERWOOD: Yes.
MS. DALBY: And that says that the respondent parents jointly and
severally failed to keep the children’s immunizations current; and
that failure constitutes medical neglect. Do you understand that?
MS. UNDERWOOD: Yes.
MS. DALBY: Okay. And you’re ready today to admit that you did
fail to keep all the immunizations current, is that correct?
MS. UNDERWOOD: Yes.
MS. DALBY: And would you want to tell the Court why you didn’t
keep the immunizations current as charged in the petition?
MS. UNDERWOOD: Because we actually lost our home, our car,
pretty much everything we had. We were living in a hotel room; and
they tried to charge me for a missed appointment; so I couldn’t bring
my kids back until I paid at least half that off; and I still can’t.
MS. DALBY: And you understand that you have the right to make
the Department put on evidence here, and have a full evidentiary
hearing at which you could cross-examine their witnesses; and bring
your own witnesses and be represented by counsel, is that correct?
MS. UNDERWOOD: Yes.
MS. DALBY: You want to waive that?
MS. UNDERWOOD: Yes.
MS. DALBY: You want . . . you will be making a written
admission. . . or a motion for an improvement period, is that correct?
MS. UNDERWOOD: Yes.
([Docket 149-2], at 74, 78, 79-81). The court’s finding that the children were neglected was based
on the combination of Underwood’s waiver of a hearing and her admission. Underwood
specifically waived her due process right to make WVDHHR prove medical neglect by clear and
convincing evidence, and then she admitted to paragraph 20 of the third amended petition, which
alleged medical neglect. A judicial admission clearly meets the clear and convincing evidentiary
standard. WVDHHR did not introduce evidence that Underwood failed to vaccinate her children
for some reason other than a lack of financial means because Underwood did not assert her due
process rights in this hearing, and then herself provided the necessary admission.
Therefore, I FIND that there is no genuine issue of material fact that the West Virginia
abuse and neglect statute was constitutional as applied to Underwood.
F. Count Five (B): Negligent, malicious infliction of emotional distress
The plaintiff’s final count is for the negligent, malicious infliction of emotional distress.
The plaintiff alleges the defendants were negligent, wanton, and reckless in taking and retaining
custody of the children without consent, prior judicial authorization, or imminent danger. The
plaintiff further alleges the defendants were negligent, wanton, and reckless by taking and
retaining custody of C.H.1 and C.H.2 after the July 20, 2009 hearing, where Underwood alleges
“the court had determined there was no imminent danger and had returned the children” to the
plaintiff. (Am. Compl. [Docket 18], at ¶ 99). The plaintiff alleges the defendants were further
negligent, wanton, and reckless by retaining custody of the children and consenting to the adoption
of the children, in light of the circuit court’s May 3, 2011 order that found Underwood received
both legal and physical custody on July 27, 2009. (Id. at ¶¶ 100-101). Against defendants Bradley,
Castleman, Oliver, and Nicewarner, the plaintiff alleges they were negligent, wanton and reckless
in failing to supervise Carper in her actions on July 27, 2009. The plaintiff alleges that as a result of
this negligence, she has suffered “loss of enjoyment of life, loss of care custody and
companionship of her children, emotional distress, depression, anxiety, embarrassment,
humiliation, and pain and suffering, stigma to her reputation, and physical injury all resulting in
conscious pain and suffering.” (Id. at 104). The plaintiff seeks damages not to exceed one million
dollars. (Id. at 105).
The facts necessary to this claim are clearly barred by SCAWV’s decision that WVDHHR
followed the West Virginia abuse and neglect statute and retained legal custody from July 20, 2009
on. Based on West Virginia’s four factor test for issue preclusion, I FIND that the defendants had
legal custody on July 27, 2009 and continued to have legal custody from then on. Therefore,
without some other source of improper behavior, the defendants cannot be held liable under tort
for legally removing the children from Underwood’s physical custody on July 27, 2009 and for
retaining custody of them after May 3, 2011. There have been no negligent acts by the defendants,
according to the preclusive facts established by SCAWV’s decision.
Therefore, I FIND that there is no genuine issue of material fact relating to this claim, and
award judgment to the defendants.
The defendants motions [Dockets 64, 67, 69, 71] are GRANTED, and the plaintiff’s
motions [Dockets 92, 139] are DENIED.
May 28, 2013
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