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Biehner v. Department of Social and Health Services

United States District Court, W.D. Washington, Tacoma

May 22, 2014

VERONICA BIEHNER, a single person, Plaintiff,
v.
DEPARTMENT OF SOCIAL AND HEALTH SERVICES, an agency of the State of Washington, KATE ORLANDO and

ORDER ON MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Defendants' Motion for Summary Judgment. Dkt. 23. The Court has considered the pleadings filed in support of and in opposition to the motion and the file herein.

On June 20, 2013, Plaintiff Veronica Biehner filed this case alleging that Defendants breached their duty to provide all material information to the state court in dependency proceedings concerning her son, they acted recklessly in pursuing a dependency when they were aware of an "extensive history of unfounded allegations" based on her son's "history of false allegations, " and violated her constitutional rights. Dkt. 1, at 4. Plaintiff's son, a minor, will be referred to in this order as "Z" in accord with Local Rule W.D. Wash. 5.2(a)(2).

Defendants now move for summary dismissal of all claims. Dkt. 23. For the reasons set forth below, Defendants' motion should be granted.

I. FACTS

On May 3, 2012, the state's Department of Social and Health Services ("DSHS") filed a Dependency Petition regarding Z in Pierce County, Washington Superior Court, Juvenile Court Division. Dependency of: Z, D.O.B. 2/11/99, Pierce County, Washington Juvenile Court number XX-X-XXXXX-X; filed in this case at Dkt. 26, at 12-17. The allegation of dependency was based on the following:

1. Veronica Biehner is the mother of Z. Michael Hurd is the presumed father of Z. He is listed on Z's birth certificate.
2. Z has previously been placed in foster care from 11-6-09 to 12-17-10 and was dependent from 2-23-10 until 6-20-11. Z was previously placed into care due to physical abuse by his mother. His mother also yelled, used profanity towards him and withheld his dinner as a means of punishment.
3. During the previous dependency, Michael Hurd, Z's father, did not engage in any services and indicated that he is not a placement resource for Z. Mr. Hurd did not maintain contact with the department and only visited with Z sporadically.
4. On 3-22-12 [Child Protective Services ("CPS")] received a referral from Z's school counselor indicating that Z is reporting physical abuse by his mother as well as neglect. Since Z started school this year his mother has told the school the Z is a liar and that she can't trust him. Z indicates that he does not have food for lunch.
5. On 3-22-12 the school reports that a month prior the mother and Z got into a conflict and she kicked him out of the car. Z walked back to his doctor's office and mother called the police. The police intervened and had Z return to the car.
6. On 3-22-12 the school reported that Z is on an [Individual Education Plan ("IEP")] and is in special education. The teacher reported the Z came to school with a small bruise on his face and he reported that his mother punched him. He said that he has had the worst week and on Tuesday (3-13-12) he and his mother got into a fight about cleaning the bathroom. He indicated that she tried to punch him and missed and she punched him again and hit him in the face with a half fist using her knuckles.
7. On 3-22-12 Z reported that he recorded the incident and mother screaming at him on his watch and mother took his watch and threw it away. During the argument she also grabbed him on his arm and left red marks.
8. On 3-22-12 Z reported that his mother has tried to kick him down the stairs and he is not allowed to leave the home outside of school time. He has to stay in his room and does not get dinner. His mother will not let him make his own lunch and on this date he had a bag of dried top ramen for lunch.
9. On 3-22-12 Z indicates that he prefers foster care to being with his mother. Z said his step father is always at work when these incidents occur and he is not able to be protective.
10. On 3-23-12 CPS went to school and interviewed Z. He indicated that his mother has hit, punched, and kicked him. He indicates that his mother punishes him if he does not clean well enough and that she kicks him out of the home if she is mad at him.
11. On 3-26-12 the social worker attempted to schedule a meeting with mother. Mother was combative over the phone, refused to meet with the worker, indicated the worker could not come to her home and indicated that Z is a liar.
12. On 4-3-12 after numerous attempts to contact mother and engage her in services the social worker was able to reach mother by phone. Mother refused to provide any collateral information to the social worker but did agree to participate in voluntary services. Mother did not show for her scheduled meeting with the voluntary services worker and the department continues to have concerns about physical abuse of Z.
13. On 4-10-12 the social worker went to mother's home. The step father was home and said that Z does not misbehave when he is at the home. He indicates that he has seen mother yell at Z and that Z yells at mother. He indicates that due to his work schedule he rarely sees Z when he is at home.
14. On 4-30-12 Z was interviewed again at school. He continues to disclose physical abuse by his mother. He indicates that it is ongoing and that he is not able to stop her. Z indicated that on Saturday he did not clean the bathroom to mother's standards and she pushed him into the tub, grabbed him by the back of his shirt and hurt him.
15. On 4-30-12 Z reported that he and his mother are having to move out of the step father's home due to marital issues. He does not know where they are going to live but there will no longer be any protective adult in the home to ensure Z is safe.
16. Mother has a founded referral from 2009 for physical abuse. Mother has been the subject of 10 CPS referrals alleging physical abuse and neglect of Z.
17. Michael Hurd has not provided any ongoing support to Z and is not a resource for him.
18. The following services have been offered during the previous dependency to prevent out of home placement: voluntary services, parenting and anger management assessment, in home counseling services, and FAST.
19. On 5-1-12 Z's mother was contacted by CPS to obtain his medication. His mother said, "I'm not giving you jack shit" and hung up on the CPS supervisor. Mother was asked three ...

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