United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
Clifford Shirley, Jr. United States Magistrate Judge
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and Standing Order 13-02.
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.
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].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.
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].
Complaint [Doc. 1] in this matter was filed on April 21,
2017. 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].
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].
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].
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].
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].
Complaint requests that DCS be prohibited from removing
children from their parents/caregivers without a valid court
order. [Id. at 48]. 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].
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.
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].
the hearings, Defendants called Susan Kovac as a witness, and
Plaintiffs called Defendant Smithwick a witness. The Court
will briefly summarize their testimony below.
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].
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.].
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.
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.].
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.].
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].
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].
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