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Hope v. Mullins

United States District Court, W.D. Tennessee, Eastern Division

December 15, 2014

BARBARA HOPE, individually and as next friend for H.H., a minor, Plaintiff,


J. DANIEL BREEN, District Judge.


This matter was brought by the Plaintiff, Barbara Hope, individually and as next friend for H.H., a minor, on May 30, 2014 against Deanna Mullins, Shilana Gant and the Tennessee Department of Children's Services ("DCS"), alleging violations of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, conspiracy under 42 U.S.C. § 1985 and violation of the principle of the Brian A. Settlement Agreement. Plaintiff also asserted state law claims including false imprisonment and false arrest. The Defendants have moved for dismissal of the complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure. (D.E. 10.) In response to the motion, Hope conceded that some of her claims are without merit, including those against the individual Defendants in their official capacities, claims against Defendant DCS, and claims brought under § 1985. She also stipulated to the dismissal of her allegation with respect to the Brian A. Settlement Agreement. Accordingly, those claims are hereby DISMISSED. Before the Court is the remainder of the Defendants'[1] motion.


Rule 12(b)(6) permits a court to dismiss a complaint for "failure to state a claim upon which relief can be granted[.]" Fed.R.Civ.P. 12(b)(6). Under the Rule, the court must "accept non-conclusory allegations of fact in the complaint as true[.]" Ohnemus v. Thompson, ___ F.Appx. ___, 2014 WL 6844631, at *2 (6th Cir. Dec. 5, 2014). "To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory." DiGeronimo Aggregates, LLC v. Zemla, 763 F.3d 506, 509 (6th Cir. 2014) (internal quotation marks & alterations omitted), pet. for cert. filed, 83 U.S.L.W. 3314 (U.S. Nov. 11, 2014) (No. 14-547). "Ultimately, the defendant has the burden of showing that the plaintiff has failed to state a claim for relief." Crugher v. Prelesnik, 761 F.3d 610, 614 (6th Cir. 2014) (internal quotation marks omitted), pet. for cert. filed, 83 U.S.L.W. 3315 (U.S. Oct. 21, 2014) (No. 14-569).

When a court is presented with a Rule 12(b)(6) motion, it may consider the [c]omplaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the [c]omplaint and are central to the claims contained therein.

Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).


The following facts have been alleged by the Plaintiff. H.H. was removed from the custody of Hope, her mother, by DCS on October 10, 2012. Mullins is a DCS agent and Gant is her supervisor. After H.H.'s removal, Hope, a resident of Florida, moved for a ninety-day trial home placement, which was granted by the Henderson County, Tennessee Juvenile Court and began in late March 2013. On May 22, 2013, after approximately sixty days of the trial placement had passed, Plaintiff moved for termination of the remainder of the period so that she could return with the child to Florida, where her family and support network were located. Although the court did not terminate the trial home placement, it did grant an "extended vacation" to Florida, with the purpose of permitting the placement to expire there without the necessity of returning to Tennessee so long as the home was verified as safe and appropriate for H.H. All parties were aware of the court's order.

DCS instructed Hope to provide potential addresses in Florida where she would be residing and to remain in contact with her attorney, H.H.'s guardian ad litem and the court-appointed special advocate ("CASA"). The court further directed her to comply with any home study arranged by the CASA, as long as the special advocate had an agency in the area. Immediately after the hearing concluded, Hope provided DCS with the addresses of several family members, as the home in which she planned to permanently reside was under repair. Mullins opposed the return to Florida and stated to Hope as she left the courtroom, "This isn't over."

When she arrived in Florida, Plaintiff kept in daily contact with the CASA, her counsel and the guardian ad litem. She also attempted to get a home study, but discovered that the state had no local CASA agency and that no state agency would perform a formal home study absent an open Florida case of dependency and neglect. Her efforts, and the results thereof, were reported to all interested parties. Nonetheless, Hope began receiving frequent and harassing telephone calls and text messages from Mullins.

Upon Mullins' request, Plaintiff contacted Tina Harkness, a protective investigator with the Florida counterpart to DCS, the Florida Department of Children and Families ("FDCF"). Mullins spoke with Harkness on several occasions thereafter, including on June 7, 2013, at which time she was informed that H.H. was in a safe and adequate home, which Harkness had inspected, and was being properly cared for. Despite the positive report, Mullins attempted to have FDCF remove the child and/or aid DCS in doing so. Harkness, after consulting with her agency's legal counsel, refused to participate or endorse any removal plan as there was no legal or factual basis for such an action. When informed directly by FDCF legal counsel that no agency employee could participate in any removal of H.H. from Plaintiff's home, Mullins hung up on him.

At that point, Mullins' communications with Hope became more threatening, leading Plaintiff to report them to her attorney. Her counsel then made numerous attempts to contact DCS general counsel, Lee Ann Rial, but received no response.

DCS, based on false statements by Mullins, proceeded to obtain an ex parte attachment of the child, which stated, in pertinent part, that she was "dependent and neglected within the meaning of Tennessee law and that the... child is in the immediate need of the [juvenile c]ourt's protection, and it further appearing that the issuance of a summons in this case would be ineffectual." (D.E. 1 ¶ 40.) On June 10, 2013, a motion for review was filed with the Henderson County Juvenile Court and signed by Rial on behalf of DCS. The Defendants, particularly Mullins, knew no facts existed to justify an emergency removal of H.H. Nonetheless, Mullins proceeded to misrepresent the facts to Rial and the juvenile court, inducing the court to issue the attachment.

The sole allegation in the motion was that Hope was residing at one address, 12 Waterbury Circle in Ormond Beach, Florida, rather than another, 69 Carol Road in the same city, even though both had been provided to DCS at the prior court hearing. Based on misrepresentations by DCS agents, the juvenile court was led to believe that H.H.'s residence at the Waterbury Circle address placed her in immediate need of the court's protection and rendered her dependent and neglected, even though Hope's attorney, the guardian ad litem and the CASA knew Plaintiff was residing on Waterbury Circle until repairs were completed at the Carol Road address. Mullins also concealed that FDCF had been in contact with Hope, had expressly approved the Waterbury Circle home as suitable and had conveyed that information to DCS and Mullins. Defendants misled Rial and the juvenile court regarding H.H.'s residency, inducing the court to enter the order of attachment when it would not have done so otherwise. Neither Hope's counsel nor the guardian ad litem were served with copies of the motion for review or attachment.[2]

Based on the attachment, DCS sent Mullins and Gant to Florida. Because the local agency refused to participate, Gant phoned Hope and ordered her to bring the child to the local FDCF office for a "spot check." H.H. was immediately taken from her mother upon their arrival and flown back to Tennessee, where she was placed in a foster home. Five days later, upon hearing ...

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