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Keates v. Koile

United States District Court, D. Arizona

August 5, 2016

Ellen Keates, an individual; and A.K., a minor, through her parent and guardian Ellen Keates, Plaintiffs,
v.
Michael Koile, individually as an employee with the State of Arizona Child Protective Services; Karen Howard, individually as an employee with the State of Arizona Child Protective Services; Gillian Vanesse, individually as an employee with the State of Arizona Child Protective Services; Rita Gomez, individually as an employee with the State of Arizona Child Protective Services; Sarah Jenkins, individually as an employee with the State of Arizona Child Protective Services; Kimberly Pender, individually as an employee with the State of Arizona Child Protective Services; Joanna Lensche, individually as an employee with the State of Arizona Child Protective Services; Steve Roundtree, individually as an employee with the State of Arizona Child Protective Services; Clarence H. Carter, individually as Director, Arizona Department of Economic Security; State of Arizona; John and Jane Does 1-5; and Black Entities 1-5, Defendants.

          ORDER

          Neil V. Wake United States District Judge

         Before the Court are Defendants’ Motion to Dismiss Second Amended Complaint (Doc. 66, sealed) and Amended Motion to Dismiss Second Amended Complaint (Doc. 68, redacted public version).

         I. RULE 12(b)(6) LEGAL STANDARD

         On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact are assumed to be true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, a complaint need contain only “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The principle that a court accepts as true all of the allegations in a complaint does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         Generally, material beyond the pleadings may not be considered in deciding a Rule 12(b)(6) motion. However, a court may consider evidence on which the complaint necessarily relies if (1) the complaint refers to the document, (2) the document is central to the plaintiff’s claim, and (3) no party questions the authenticity of the copy of the document submitted to the court. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).

         II. FACTUAL ALLEGATIONS ASSUMED TO BE TRUE

         The following facts are assumed to be true for the purpose of deciding the motions to dismiss the Second Amended Complaint. The Court makes no determination of whether they are in fact true.

         At all times relevant, Defendants Michael Koile, Karen Howard, Gillian Vanesse, Rita Gomez, Sarah Jenkins, Kimberly Pender, Joanna Lensche, and Steve Rountree were employees of the State of Arizona through the Child Protective Services (“CPS”) division of the Arizona Department of Economic Security.[1] Defendant Clarence E. Carter was the Director of the Arizona Department of Economic Security.

         Plaintiff Ellen Keates is the mother of A.K. On May 20, 2013, A.K. was thirteen years old, had been experiencing depression for four to six months, and occasionally had suicidal ideation. About one month before school ended, A.K. was suspended for two weeks for violation of school rules, and she was depressed and stressed. On May 20, 2013, Keates took A.K. to Christ Cares Clinic where she began to cry in the waiting room. When asked, A.K. told a Clinic employee that she was sad, she did not currently have suicidal ideation, but she had experienced suicidal ideation in the past. A.K. told a doctor at the Clinic she previously had thoughts of choking herself.

         A Clinic employee told Keates she needed to take A.K. to the emergency room. Keates took A.K. to Phoenix Children’s Hospital (“PCH”), where she was told that someone from the Clinic had called ahead. A.K. was seen immediately, which was about 9:00 p.m. A triage nurse noted that A.K. reported having suicidal ideation, but she had denied having a plan to carry it out. A.K. was subsequently evaluated by a doctor, who ordered evaluation by a social worker and a psychological consultation.

         About midnight, two PCH employees discussed treatment options with Keates and said she could take A.K. home if she provided a safety plan. Keates offered several options, including having A.K. stay at home with her twelve-year-old brother, stay at a neighbor’s home, or stay at the public library while Keates was working. When those options were not accepted, Keates offered to stay home with A.K., but explained she is self-employed and staying home would be detrimental to her business.

         Subsequently, the PCH employees said that A.K. was required to go to a “mental hospital” for inpatient treatment. Keates informed them that she did not have insurance to pay for inpatient treatment. The PCH employees tried to get Keates’ contact information, but she refused. At that point, Keates “furiously expressed her concern” that A.K. was being held hostage until PCH could get billing information from her. (Doc. 58 at 9, ¶ 51.) Someone from PCH reported to CPS that “A.K. was suffering from severe depression and had attempted suicide by strangulation on May 20, 2013.” (Id., ¶ 52.) It also was reported that inpatient care was necessary and Keates was not able to enact a safety plan for A.K. Eventually Keates gave PCH her contact information. PCH staff said A.K. would be reassessed in the morning, and Keates should go home and call in the morning.

         At 12:45 a.m., May 21, 2013, PCH employees called the CPS Hotline. They called again at 1:36 a.m. At 7:44 a.m., they called CPS supervisor Gillian Vanesse. About 8:00 a.m., Keates called PCH, no one answered, and she left a voicemail message.

         When Keates called PCH again, she was told there would be no second assessment and CPS had told PCH that Keates was not to have contact with A.K. and was not to come back to PCH. A PCH employee informed CPS that a second assessment would not be done unless A.K. waited for 48 hours for a bed at an inpatient treatment facility. PCH employees attempted to call Keates, using an incorrect telephone number. About 10:48 a.m., Michael Koile, a CPS case worker, interviewed A.K. without Keates’ presence or consent. A.K.’s only complaint about Keates was that she “yells, screams, and cusses.” Koile never contacted Keates. About 11:45 a.m., with the consent of CPS supervisor Kim Pender, Koile issued a Temporary Custody Notice to take A.K. into custody. CPS employees Joanna Lensche and Steve Rountree collaborated in the issuance of the Temporary Custody Notice.

         Koile told PCH that Keates was prohibited from seeing A.K. during the remainder of A.K.’s stay at PCH. PCH discharged A.K. on May 21, 2013. Keates was not billed for A.K.’s stay at PCH. Plaintiffs believe that PCH was paid for A.K.’s stay because CPS took immediate temporary custody of A.K.

         When discharged from PCH, A.K. was transferred to Aurora Behavioral Health System in Tempe, Arizona, by ambulance while strapped down to a gurney. Koile reported to Aurora that A.K. had tried to commit suicide on May 20, 2013, and instructed that Keates was not allowed to contact A.K. A.K. told the intake nurse that she did not have suicidal ideation at that time, she had experienced suicidal ideation over the past several months, but she had no plan to commit suicide. She said she was depressed. A.K. told the Aurora intake nurse that the doctor at Christ Cares Clinic misunderstood her when she said she had thoughts of choking herself “a while ago, ” and she did not feel like that now. A.K. told the Aurora intake nurse that she did not try to strangle herself the previous day. The suicide risk assessment at Aurora resulted in a finding of “low” risk for suicide.

         On May 22, 2013, Koile interviewed Keates. On May 23, 2013, Koile informed Aurora that he concluded Keates was unable to care for A.K. and that a dependency petition would be filed. On May 24, 2013, a dependency petition was filed by the Arizona Department of Economic Security on behalf of CPS, stating that A.K. had attempted suicide on May 20, 2013, and Keates refused admitting A.K. for treatment because she lacked insurance. On May 26, 2013, Keates met with Koile and Pender, during which Koile told Keates that A.K. required intensive outpatient treatment at Aurora and if Keates could not make financial arrangements for the treatment, A.K. could not go home. When Keates called Aurora, she was told that intensive outpatient treatment was not recommended for A.K.

         On May 29, 2013, A.K. was discharged from Aurora into Koile’s custody and placed into a foster home. The foster mother, an Aurora social worker, did not take A.K. to Aurora for intensive outpatient treatment. CPS did not ensure that A.K. received her prescribed psychotropic medications. On June 11, 2013, a report from CPS was filed with the juvenile court. It stated that there were no court orders restricting Keates from having contact with A.K. While A.K. was at the foster home, no one from CPS visited her.

         On August 5, 2013, A.K. was placed in a group home, which would not transport A.K. to her high school where A.K. had been accepted into an honors program. Keates informed a CPS case worker about the transportation issue and offered to drive A.K., but CPS refused. On August 8, 2013, A.K.’s guardian ad litem obtained an emergency court order requiring CPS to provide transportation to and from the group home and A.K.’s high school. CPS arranged for a taxi to transport A.K., which caused A.K. to be embarrassed and increasingly depressed.

         On September 11, 2013, the juvenile court granted a change in the case plan to in-home dependency with A.K. remaining a temporary ward of the state. On September 12, 2013, A.K. returned home, but her relationship with Keates was damaged. On November 26, 2013, the juvenile court granted a motion to dismiss A.K.’s dependency by the Arizona Department of Economic Security.

         III. ...


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