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Barnett v. Hommrich

United States District Court, E.D. Tennessee, Knoxville

February 6, 2018

MENDY BARNETT, et al., Plaintiffs,
BONNIE HOMMRICH, et al., Defendants.


          C. Clifford Shirley, Jr. United States Magistrate Judge

         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

         Now before the Court are two Motions to Disqualify Counsel [Docs. 5, 28]. The former Motion was filed by Defendants Bonnie Hommrich, Douglas Dimond, Sophia Crawford, and Daniel Smithwick, and the latter Motion was filed by Tennessee Department of Children's Services (“DCS”) and Bonnie Hommrich, in her official capacity.

         By way of background, the Court addressed the former Motion at a hearing on August 29, 2017, and the hearing was continued to September 6, 2017. At the conclusion of the September 6 hearing, it was brought to the Court's attention that DCS had not been served. Plaintiffs agreed to promptly serve DCS, and the parties agreed to file a stipulation that DCS and Bonnie Hommrich, in her official capacity, would join the already filed Motion to Disqualify [Doc. 5]. See [Doc. 27].[1]After Plaintiffs effected service, DCS and Hommrich, in her official capacity, filed their Motion to Disqualify Counsel [Doc. 28], which incorporated the previously filed Motion.

         Subsequently, Plaintiffs filed a Notice of Voluntary Dismissal of DCS and Bonnie Hommrich, in her official capacity. [Doc. 29]. Given that DCS and Hommich were dismissed, the Court allowed the parties to file additional briefs regarding the disqualification issue. [Docs. 32, 37]. The Motions are now ripe for adjudication. Accordingly, for the reasons further explained below, the Court DENIES the Motions to Disqualify [Docs. 5, 28].

         I. BACKGROUND

         The Complaint [Doc. 1] in this matter was filed on April 21, 2017.[2] The Complaint alleges that on April 21, 2016, DCS wrongfully removed the children from their parents' legal and physical custody and placed them in foster care, where they remained until May 25, 2016. [Id. at ¶ 9]. The Complaint continues that the children were returned to the parents' physical custody on May 25, 2016, by virtue of a “trial home placement, ” in which the State retained legal custody of the children until June 15, 2016, at which time the State voluntary dismissed its case against the parents. [Id.]. The Complaint states that the absence of promulgated rules and policy that fail to meet constitutional standards led to the injury to the Plaintiffs and is part of an ongoing pattern and practice, injuring thousands of children and families each year with many more children having sustained damages in the past after being wrongfully removed by DCS, despite a clear statement of the law contrary to the policies and procedures implemented by DCS. [Id. at ¶ 10].

         With respect to the alleged wrongful removal in this case, the Complaint states that DCS received a referral on or about March 18, 2016, alleging that the children were dirty and hungry while left with caregivers. [Id. at ¶ 11]. On March 21, 2016, an unknown agent of DCS made contact with Plaintiff Barnett at the family home, and Plaintiff Barnett refused entry into the home and directed the individual to leave the property. [Id. at ¶ 12]. On March 31, 2016, Defendant Smithwick, or those acting under his direction, filed an Application and Order to Investigate with the Jefferson Juvenile Court. [Id. at ¶ 13]. On the same date, the Juvenile Court of Jefferson Country entered an order permitting DCS to have access to the child and the child's home for purposes of the investigation. [Id. at ¶ 14]. The order also permitted DCS to take physical possession of the children for the purpose of obtaining a medical or forensic exam. [Id.]. The Complaint continues that the order was obtained ex parte, it was never served, there was no summons issued, nor was a hearing held or scheduled. [Id. at ¶ 15].

         The Complaint states that on April 21, 2016, the child (“MGW”) was located at the paternal grandparents' house, wherein the child was removed with the assistance of law enforcement. [Id. at ¶¶ 16-17]. Defendant Cervino contacted the parents and asked that they return to the grandparents' residence with their other child (“MW”), and the parents refused. [Id. at ¶¶ 23-24]. MGW was transported to Children's Hospital, and medical professionals determined that no medical treatment was necessary. [Id. at ¶ 26]. The grandparents requested that MGW be returned, but Defendants Cervino and Smithwick declined, and Defendant Cervino contacted the parents, stating that she would only release MGW if they appeared with MW at the hospital. [Id. at ¶¶ 27-29]. The Complaint alleges that the parents directed Defendant Cervino to release MGW to the grandmother, but she declined. [Id. at ¶¶ 30-31].

         The Complaint continues that at approximately 11:05 p.m., Defendant Smithwick made a determination that MGW and MW were to be brought into legal and physical custody of the State of Tennessee. [Id. at ¶ 31]. The Complaint states that at no point during the investigation did any agent of DCS see, examine, or otherwise come in contact with MW. [Id. at 32]. MGW was placed in a foster home on April 22, 2016. [Id. at ¶ 33]. The Complaint states that MW remained in Plaintiffs' physical possession until April 25, 2016, at which time a Petition for Legal Custody and Ex Parte Order was entered with the Juvenile Court of Jefferson County. [Id. at ¶ 34]. The petition alleged, in part, that the grandparents were unable to maintain the safety of the child due to their ages and disabilities and that the parents had abandoned the child. [Id. at ¶¶ 35-36]. The Complaint states that Plaintiffs were denied access to their children in excess of four weeks. [Id. at ¶ 37]. The Complaint alleges that during such time, the children were subjected to medical treatment without Plaintiffs' consent. [Id. at ¶ 38].

         The Complaint states that a preliminary hearing was timely set at the Juvenile Court on April 27, 2016, at which time the parents waived their right to the same. [Id. at 39]. On or about May 23, 2016, Plaintiff Mendy Barnett revoked her waiver of a preliminary hearing, and the Juvenile Court timely scheduled a hearing on May 25, 2016. [Id. at ¶ 40]. On the same date, Defendants returned the children to the parents' custody on a trial home visit pursuant to Tennessee Code Annotated § 37-1-129, with the state retaining legal custody without the necessity of a hearing. [Id. at ¶ 41]. Later, on June 15, 2016, the parties appeared for a scheduled hearing, at which time, DCS gave notice of a voluntary dismissal of the action. [Id. at ¶ 42].

         The Complaint requests that DCS be prohibited from removing children from their parents/caregivers without a valid court order. [Id. at 48].[3] The Complaint further alleges violations of the Fourth and Fourteenth Amendments; deprivations of the right and freedom of association; violations of the Americans with Disability Act; violations of the equal protection of laws; deprivations of the fundamental liberty interest in the determination of medical care, examination, and treatment of the children; deprivations of the fundamental liberty interest of families to have the society of one another; and negligent supervision. [Id. at 8-18]. In addition, the Complaint alleges that Defendant Hommrich failed to ensure that properly promulgated rules were in effect to govern the removal of children into state's custody and that Defendant Dimond failed to educate subordinate attorneys to act in accordance with the law and that he knowingly, willfully, and wantonly allowed unlawful practices by subordinate attorneys that deprived Plaintiffs of due process of law. [Id. at 17-22].

         II. EVIDENCE

         Prior to the presentation of the evidence, Attorney Trujillo stated, at the August 29 hearing, that the parties had agreed to several facts. Specifically, DCS has filed six cases against Plaintiff Barnett from 2010 to 2016. [Doc. 35 at 5]. Attorney Trujillo was involved in a 2010 case, wherein she represented Plaintiff Barnett against DCS. [Id.]. Attorney Trujillo began her employment with DCS in January 2011 and was promoted to Regional General Counsel (“RGC”) in 2012. [Id. at 6-7]. In 2015, she represented DCS against Plaintiff Barnett. [Id.].

         In addition, Attorney Trujillo announced the following facts to the Court, which do not appear to be in dispute. Attorney Trujillo stated that she left on medical leave in December 2015 and that Defendant Smithwick took over her supervisory duties. [Id. at 7]. She was Smithwick's supervisor, but when she was on medical leave, Sophia Crawford was his supervisor. [Id.]. She stated that she was still being paid during that time and that there was a short period of time when she was permitted to work five hours a day. [Id. at 7-8]. She was hospitalized on March 30, 2016, and returned to the office on April 25, 2016. [Id. at 7-8]. She provided her two-week notice on April 25, 2016, and her resignation was effective May 9, 2016. [Id. at 8]. She stated that when she came back to the office on April 25, her job title was RGC, but Defendant Smithwick was actually managing the region. [Id. at 8]. Attorney Trujillo stated that Defendant Smithwick decided to remove Plaintiffs' children and that his direct supervisor at that time was Sophia Crawford (although ordinarily, it would have been Attorney Trujillo). [Id. at 9-10].

         During the hearings, Defendants called Susan Kovac as a witness, and Plaintiffs called Defendant Smithwick a witness. The Court will briefly summarize their testimony below.

         1. Susan Kovac

         Susan Kovac is currently the RGC for DCS in Knox County. [Doc. 35 at 16]. She supervises and trains all the subordinate attorneys, as do all RGCs. [Id. at 17]. Kovac was in regular contact with Attorney Trujillo, and they discussed responsibilities. [Id. at 18].

         Kovac stated that she was familiar with the policy change within DCS. [Id. at 19]. Kovac testified that there were two Sixth Circuit cases that were of particular concern to DCS's lawyers, as well as the Attorney General. [Id.]. She continued that the Attorney General suggested that the agency would no longer be defended if the agency removed any child without first obtaining an order. [Id.]. Kovac stated that the agency disagreed with that interpretation of the law, but it did not have a policy that was clearly enforceable and that distinguished “exigent” circumstances removals, which the agency believed it was allowed to do even under the Sixth Circuit cases. [Id.]. Kovac stated, “From what our client tended to think of as emergencies, that applied to almost every removal they saw.” [Id.].

         Kovac testified that the department faced a significant, immediate crisis because the Attorney General stated that it would not defend the department, but such action (or nonaction) could leave children in danger. [Id.]. Kovac stated that everyone was discussing the crisis, and it was a major topic at the annual CLE retreat. [Id. at 20]. During the annual CLE, there was a small group that participated in very intense discussions regarding how the policy needed to be rewritten, and the meeting was the beginning of rewriting the policy. [Id.]. Attorney Trujillo participated in those discussions, and they discussed the new Sixth Circuit cases and the Fourth Amendment's requirements for legally removing children. [Id.]. They also discussed how the policy in effect at that point did, or did not, fit with the status of the law and what the new policy should look like in general terms. [Id. at 21]. While they did not discuss specific terms of the new policy, they discussed the direction that they needed to take in order to craft a policy that the Attorney General would defend. [Id.]. They debated and developed what the policy should generally look like. [Id.]. Kovac continued that they left the meeting with instructions about further work that needed to be finished to pull a policy together. [Id.]. Afterwards, Kovac pulled the policy together, circulated it to the RGCs, and then presented it to the Attorney General before it was ultimately put into the right wording and accepted as policy. [Id. at 22]. She stated that Attorney Trujillo was part of the process. [Id.].

         On cross examination, Kovac testified that the meeting that occurred during the CLE retreat was not a set or planned meeting. [Id. at 23]. She described the meeting as a “crisis caucus” and not a scheduled policy meeting. [Id. at 24]. She stated that the change in the law must inform DCS policy and that the law always trumps. [Id.]. She continued that they were told that the policy was indefensible and that the practice could not continue, so the lawyers, which included RGCs, needed to step in and make sure that the policy was in compliance with the law. [Id.]. Kovac stated that Attorney Trujillo attended the discussion group for a couple of hours and that she was “there enough to be helpful.” [Id. at 25]. Kovac testified that she believed that Attorney Trujillo was an integral part of the analysis, in terms of thinking through the issues and how they would be applied to the child welfare practice, what “exigent” meant, and how it could be defined for program staff. [Id.].

         Kovac continued that after the discussion group, attorneys in the general counsel's office researched equivalent policies, and Kovac drafted the policy based on the research. [Id. at 26]. She then circulated it among people in the general counsel's office. [Id.]. Kovac stated that Attorney Trujillo was not particularly asked to review the policy or to draft the policy. [Id.]. Kovac stated that the draft was sent to the RGCs, but she does not recall Attorney Trujillo formally participating. [Id. at 27]. Kovac stated that after that weekend of the CLE conference, she does not recall Attorney Trujillo being part of the policy-making process. [Id.].

         Upon questioning from the Court, Kovac testified that she does not recall the policy being circulated for approval to the other RGCs. [Id. at 28]. She further stated that she does not recall soliciting questions or comments from the other RGCs. [Id.]. She testified that she sent the policy to the RGCs because everyone needed to know where they were heading. [Id. at 28-29]. Kovac testified that it was not the policy at first because it needed to be presented to the Attorney General and that she had to get her own program people to review what was legally correct, and they did some rewriting. [Id. at 29]. Kovac continued that DCS's lawyers are certainly supposed to be familiar with whatever policy relates to DCS's work. [Id. at 31]. She continued that RGCs enforce the policies to the “extent legal is involved.” [Id. at 31-32]. She explained that she supervises the lawyers but not the investigators. [Id. at 32-33]. She stated that if she discovers a case manager not following policy that impacts her legal work, she reports such to the case manager's supervisor. [Id. at 33]. She stated that investigators, prior to the policy change, believed everything was an emergency situation and that once the policy changed, the situation had to be exigent. [Id. at 35]. Exigent removals cannot happen without the RGC agreeing to such removals so that DCS can legally meet the terms of “exigent circumstances.” [Id. at 33]. Kovac testified that the policy took effect in late 2013 and that she and Attorney Trujillo had discussions regarding the policy change after it went into effect. [Id. at 34]. Attorney Trujillo did not raise concerns that the policy was unconstitutional, but they had conversations as to whether people were following the policy, whether the case managers were doing what they were supposed to do, whether it was being enacted properly, whether people understood it, and whether they were paying attention when they explained what the law required. [Id.]. Kovac testified, and Attorney Trujillo agreed, that it was important to both of them that that policy be followed by investigators and case managers. [Id. at 35].

         2. Daniel Smithwick

         Plaintiffs called Daniel Smithwick to testify in this case. [Doc. 36 at 10]. Smithwick is employed with DSC as RGC for the Smoky Region. [Id. at 11]. Smithwick stated that he filed an affidavit with the Court. [Id.]. He testified that his personal recollection was that Attorney Trujillo went on intermittent medical leave in January 2016. [Id. at 12]. He explained that at times, she worked from 8:00 a.m., to 3:00 p.m., and that sometimes, she was full time, and other times she was out. [Id.]. He testified that he was put in a long-term position as RGC on May 20, 2016. [Id. at 13]. He testified that DCS attorneys frequently worked from home. [Id. at 14]. He stated that during January to April 2016, Attorney Trujillo was his supervisor. [Id. at 15]. Smithwick testified that Attorney Trujillo was responsible for approving all after-hour removals from 2012 to 2015. [Id. at 18]. Smithwick testified that Attorney Trujillo stated, “I'm going to approve all the after-hours removals. I'm the only one that does that.” [Id. at 18-19].

         Smith testified that Attorney Trujillo's responsibilities as RGC were to attend meetings every other month, disseminate information learned from the meetings, hold periodic meetings with attorneys, and provide subordinate attorneys with directions regarding policy and case law. [Id. at 21]. Smithwick continued that Attorney Trujillo also participated in meetings, where she and others discussed current case law, changes in policy, and current trends in ...

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