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Chen v. D'Amico

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

December 20, 2019

SUSAN CHEN, et al., Plaintiffs,
v.
NATALIE D'AMICO, et al., Defendants.

          AMENDED ORDER GRANTING IN PART AND DENYING IN PART STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the court is Defendants Washington State Department of Social and Health Services (“DSHS”), Bill Moss, Kimberly R. Danner, and Jill Kegel's (collectively, “State Defendants”) motion for summary judgment. (MSJ (Dkt. # 189).) Plaintiffs Susan Chen and J.L., a minor child, filed a response. (Chen Resp. (Dkt. # 204).) Plaintiff Naixiang Lian joins Ms. Chen and J.L.'s response.[1] (Lian Resp. (Dkt. # 201).) State Defendants filed a reply. (Reply (Dkt. # 219).) The court has considered the motion, the parties' submissions concerning the motion, the relevant portions of the record, and the applicable law.[2] Being fully advised, the court GRANTS in part and DENIES in part State Defendants' motion as set forth below.

         II. BACKGROUND

         This case involves a dispute about the removal of a minor child, J.L., from his parents' custody. J.L.'s parents, Ms. Chen and Mr. Lian, initially brought claims against defendants affiliated with the City of Redmond (the “City Defendants”) and a number of DSHS officials (“State Defendants”). (See FAC (Dkt. # 96) ¶¶ 132-286.) The court granted summary judgment in favor of the City Defendants on May 24, 2019. (See 5/24/19 Order (Dkt. # 170) at 60.) The remaining State Defendants-Kimberly Danner, Bill Moss, Jill Kegel, and DSHS- now move for summary judgment on Plaintiffs' remaining claims.[3]

         A. J.L.'s Hospital Visit and the Child Protective Services (“CPS”) Referral

         On October 7, 2013, [4] Ms. Chen took J.L. to see Dr. Kate Halamay at Pediatric Associates Inc., P.S. (“Pediatric Associates”). (RED00351-53.[5]) Dr. Halamay had seen J.L. previously. (See, e.g., RED00339.) According to the notes from the October 7 appointment, J.L. had been experiencing abdominal pain for around six weeks. (RED00351.) Dr. Halamay recommended that Ms. Chen take J.L. to the Gastroenterology (“GI”) department at Seattle Children's Hospital (“SCH”), but Ms. Chen declined, stating that “she has seen them for the past 14 months and they ‘have not done anything for [J.L.]'” (RED00352.) Dr. Halamay's notes show that J.L. visited the SCH GI department only once in the prior year. (Id.) Ms. Chen then asked Dr. Halamay to order a number of labs, but Dr. Halamay refused because she was “unfamiliar with several of them and would not know how to interpret them.” (RED00353.)

         On October 19, 2013, Ms. Chen and Mr. Lian took J.L. to Dr. Julie Ellner at Mercer Island Pediatrics, in part hoping that Dr. Ellner would order the labs they were seeking. (See RED00107; 1st Chen Decl. (Dkt. # 131) ¶ 27-28.) Dr. Ellner's notes state that Ms. Chen was worried that J.L. has a “severe problem with kidney or liver, ” that he was losing weight, and was eating poorly. (RED00107.) Ms. Chen told Dr. Ellner that J.L. had laboratory tests at a hospital in New York, as well as an ultrasound, which showed that there was something wrong with J.L.'s liver. (Id.) However, Ms. Chen did not bring the lab results to Dr. Ellner; nor was she able to remember the doctor or the hospital where the tests were performed. (Id.) Dr. Ellner referred J.L. to the emergency room. (Id.)

         Later that day, instead of going to the emergency room, Ms. Chen took J.L. to Pediatric Associates. (See RED00356-58; D'Amico Decl. (Dkt. # 107) ¶ 3h, Ex. H (“CPS Docs”) at RED00050-51.) Similar to Dr. Ellner, Dr. Roberta Winch at Pediatric Associates told Ms. Chen to take J.L. to emergency care. (RED00358 (“IT IS VERY IMPORTANT [J.L.] BE SEEN FOR FURTHER EVAL IN THE ED [emergency department] AT SCH. I RECCOMEND [sic] THEY GO NOW. PARENTS AGREED TO BE SEEN AT SCH ED AND SAID THEY WILL GO THERE NOW.”).) Ms. Chen says that she did not understand Dr. Winch's instruction. (See 1st Chen Decl. ¶ 27.) Instead, Ms. Chen took J.L. to SCH's urgent care to have lab work done. (Id.; RED00853-55.)

         Ms. Chen returned to SCH urgent care on October 20, 2013, to pick up J.L.'s lab work. (1st Chen Decl. ¶ 28.) Once there, doctors told Ms. Chen that J.L.'s lab work was abnormal, showing elevated levels of creatinine and blood urea nitrogen (“BUN”). (Id.) Ms. Chen then took J.L. to SCH emergency care. (Id.; CPS Docs at RED00050-51.) That day, Dr. Russell Migita in SCH's emergency department examined J.L. and performed additional tests, which showed J.L. improved since October 19, 2013, but that his lab results were still “not normal.” (RED00370-75.) A nurse's report states that J.L. “seemed irritable, tired, limp.” (RED00805.) It also states that Ms. Chen “refused transport or interpreter services. NOTE!! this child was a no show to the ED yest[erday] for same issues, swollen abd[omen].” (Id.)

         Dr. Migita expressed that J.L. “would benefit from having a coordinated workup that includes endocrinology, gastroenterology, and nephrology.” (RED00374.) However, Dr. Migita discharged J.L. from the hospital on October 20, 2013, because he did not have “hypertensive emergency at this time and d[id] not meet the eminent risk criteria for medical hold.” (See RED00374-75.) Dr. Migita released J.L. on the understanding that Ms. Chen and Mr. Lian would follow-up with J.L.'s primary care provider. (RED00374-75 (noting “Plan” to see Dr. Halamay “[w]ithin 1 to 3 days”).)

         On October 23, 2013, Ms. Chen brought J.L. to see Dr. Gbedawo, a naturopathic physician, who saw J.L. nine times between April 2013 and October 2013. (1st Chen Decl. ¶ 31; Gbedawo Decl. (Dkt. # 158) ¶¶ 2, 7, 8.) Dr. Gbedawo understood that J.L. had been to emergency and urgent care a few days earlier and that he had been discharged “as non-emergent.” (Gbedawo Decl. ¶ 8.) At the appointment, Dr. Gbedawo “did not recommend that [Ms. Chen] take J.L. to the emergency department.” (Id.) Rather, he recommended that Ms. Chen take J.L. “to a nephrologist and a nutritionist for additional consultations and ordered additional labs and imaging.” (Id.)

         Later that day, Ms. Chen took J.L. to Dr. Halamay, as she had been instructed by Dr. Migita. (1st Chen Decl. ¶ 32.) According to Dr. Halamay's notes, Ms. Chen “declined [a] phone interpreter although offered several times” and “refus[ed] to make eye contact, t[ook] a long time to answer questions or refuse[d] to answer at all.” (RED00397.) Dr. Hal Quinn at Mercer Island Pediatrics, who had seen J.L. previously, called Dr. Halamay before the appointment. (RED00397; RED00105-06.) Dr. Quinn:

expressed great concern about this [patient] as well as family, feels that he his [sic] very sick, concern about failure to thrive, has lost several pounds since April, concerned that family has been going from dr to dr but that pt is not actually receiving appropriate medical attention.

(RED00397.) Dr. Halamay noted that J.L. appeared “[v]ery tired” and continued to “have distended abdomen, ” though Ms. Chen said his condition was improving. (RED00397.) Dr. Halamay also noted that Ms. Chen was confused about doctors' instructions from October 19 and 20 to take J.L. to certain specialists, and that the Chen family “did not go to [ED] as recommended.” (Id.) Dr. Halamay recommended that Ms. Chen admit J.L. to the hospital “at once” so that he could be seen by renal, endocrine, and GI specialists. (Id.) Ms. Chen “refused to take [J.L.] for admission, even after [Dr. Halamay] stated that [she] felt admission was medically necessary given his abdominal distension, weight loss, and worsening lab values compared to those drawn a few weeks ago.” (Id.) Dr. Halamay further noted that she spoke with Dr. Metz, a doctor on the SCH Suspected Child Abuse Network (“SCAN”) team, “who again recommended admission for this patient for coordination of care as well as to provide social support for the family and also to determine if SCAN team involvement is necessary.” (Id.)

         Dr. Halamay further recommended to Ms. Chen that they arrange an admission for J.L. to coordinate several services, but Dr. Halamay's notes indicate that Ms. Chen “refused to take him for admission, even after [Dr. Halamay] stated that [he] felt admission was medically necessary given [J.L.'s] abdominal distension, weight loss, and worsening lab values compared to those drawn a few weeks ago.” (Id.) Ms. Chen remarked “‘I have no confidence in [SCH]. . . . I will find my own specialists. This is a waste of time and a waste of money. I have no time to sit in the hospital.'” (Id.) Given Ms. Chen's refusal, Dr. Halamay “again spoke [with] Dr. Metz who agreed that given [J.L.]'s medical issues, if [Ms. Chen] does not agree to admission that it would be appropriate to contact CPS.” (Id.) Dr. Halamay then told Ms. Chen again that he felt that J.L.'s admission was medically necessary, and that if Ms. Chen did not admit J.L., that Dr. Halamay would “have to contact CPS in order to ensure that [J.L.] receives proper medical attention.” (Id.) Ms. Chen again refused to agree to admission, and according to Dr. Halamay, “became angry, stood up, picked [J.L.] up and left the office.” (Id.) Dr. Halamay then contacted CPS, and then contact SCH's emergency department that J.L. “may be coming in and that he needs to be admitted.” (Id.)

         Ms. Chen recalls that she “felt as though Dr. Halamay and SCH were dismissive and had not provided proper care for [J.L.]” (1st Chen Decl. ¶ 32.) Further, Ms. Chen told Dr. Halamay at the October 23 appointment that she “would not go back to see [Dr. Halamay] anymore” and that she “would make a complaint against her.” (Id.)

         Late on the night of October 23, 2013, a CPS social worker, Kirk Snyder, arrived at Plaintiffs' home and took J.L. to SCH's emergency department. (See RED00814; Plfs' MSJ (Dkt. # 141) at 7; but see 1st Chen Decl. ¶ 33 (stating that “[a]t [CPS]'s recommendation, we took J.L. to SCH.”).) J.L. was seen on October 24, 2013, by Dr. Virginia Sanders and Dr. Shannon Staples. (See RED00791.) According to Dr. Sanders's summary, J.L. showed a “failure to thrive . . . [and] gross malnutrition and muscle wasting. Concern for medical cause of wasting vs. neglect.” (RED00792.) J.L. was then admitted to SCH's “general medicine service” to treat his malnutrition and receive a SCAN consultation. (Id.) Dr. Sanders also wrote that “[g]iven mother's resistance to medical evaluation in this ill child, he is currently in state custody.” (Id.) Dr. Sanders instructed lab tests and scheduled a follow-up with Dr. Kate Halamay. (RED00793.)

         While at SCH on October 24, 2013, providers gave J.L. Pedialyte even though Ms. Chen told them that “whenever [J.L.] eats sugar his belly gets big.” (RED00927, RED00930.) Ms. Chen also told the SCH providers that J.L. “cannot eat many foods, including carbohydrates or sugar, ” but Ms. Chen was unable to “identify any food that he does eat.” (RED00927-28.) In addition, Ms. Chen interfered with providers' attempts to give J.L. Pedialyte. (D'Amico Decl. ¶ 3c, Ex. C (“D'Amico Report”) at RED00015.) The doctors noted that Ms. Chen was “asked to leave” the hospital room “because of her erratic and obstructionist behavior.” (RED00930.) However, after J.L. consumed several ounces of Pedialyte, J.L. “reaccumulated significant abdominal distention, ” which required the doctors to use a catheter to relieve the distention. (Id.)

         J.L. weighed 12.2 kilograms (26.9 pounds) when he was admitted to SCH on October 24, 2013, which is the third percentile. (RED00814.) Carol Barber, a social work consult, reported on that date that the attending physician gave J.L. Pedialyte and J.L. drank it “hungrily.” (See 2d Lo Decl. (Dkt. # 215, 216 (sealed)) ¶ 43, Ex. 42.) She also reported that “[o]n multiple occasions, when medical staff weren't looking, the mother took the Pedialyte away from the patient while patient was drinking it. Mother continued to do this despite instruction from medical staff to allow patient to drink.” (Id.)

         Dr. Metz of the CPS SCAN team prepared a report dated October 27, 2019, while J.L. was still being treated at SCH. (RED00813-18.) The report noted that J.L was in the third percentile for weight and third percentile for body-mass index, and that J.L. was “severely malnourished.” (RED00816-17.) Dr. Metz wrote that “this could potentially be due to his severe state of poor nutrition, although other etiologies must be ruled out.” (RED00817.) After a review of some of J.L.'s medical history, Dr. Metz wrote:

It is concerning that patient's mother has not followed through with the recommendations by multiple providers, both in the emergency department at [SCH] as well as the outpatient setting. Mother's behavior seems to be erratic and although she has sought care with multiple providers it does not appear that she is following through with their recommendations. Regardless of [J.L.]'s mother's intentions, it does seem that there is an element of neglect given his current nutritional status. . . . I think it will be important to continue to obtain records from all of his providers that he has seen to try to further elucidate what medications he has been on. It will be important while [J.L.] is in the hospital to see how he tolerates feeding and how his weight changes given adequate nutrition.

(Id.)

         B. Protective Custody and 72-Hour Dependency Hearing

         The Seattle Police Department placed J.L. in protective custody on October 24, 2019, “due to immediate concerns of medical neglect, ” and transferred custody to “field worker Davis, who was present at the hospital.” (2d Lo Decl. ¶ 3, Ex. 2 (“Danner Case File”) at 2-4[6]; see also RED00002 (“J.L. was taken into protective custody by [the Seattle Police Department] and turned over to [CPS].”); RED00814 (“[J.L.] was placed in protective custody by the police department.”).)

         Kimberly Danner, a CPS investigator, was assigned to J.L.'s case on the same day. (Danner Case File at 4.) Ms. Danner's notes state that Ms. Chen “caused so much disturbance that staff had to call police and have her removed from the hospital.” (Id. at 3.) Another entry in the case file states that “[t]here are significant concerns about mom's mental health due to her recent behavior at [SCH] as well as at Pediatric Associates.” (Id. at 4.)

         Ms. Danner signed and filed a dependency petition October 25, 2013, in King County Superior Court - Juvenile Court. (See 2d Lo Decl. ¶ 4, Ex. 3 (“Dependency Petition”) at 2, 7.) In addition to largely repeating the medical history for J.L. described in Ms. Danner's notes, the Dependency Petition also states, in relevant part:

• Due to J.L.'s “extremely distended abdomen, ” physicians at both Mercer Island Pediatric and Pediatric Associates on October 19, 2013 “recommended the mother take the child to the hospital immediately. The mother refused and left against Medical Advice. The mother and child returned to [SCH] later that day. The child's labs had stabilized and the child was discharged.” (Id. at 4.)
• At Pediatric Associates on October 23, 2013, the physician reported that JL's condition had worsened. “The referrer stated the child needs to be admitted to [SCH] immediately, and she directed parents to do so. Mother did not take the child [J.L.] after this visit, and only did so later in the evening when the parents were directed to take the child to the hospital.” (Id.)
• “All health care providers who have been contacted by the Department and Law Enforcement to date have reported concerns that the mother is ‘doctor shopping', seeking medical care that the child does not need, and also not following through on medical care that is recommended by medical care providers.'” (Id.)
• “Not only did the child suffer life-threatening physical conditions related to malnourishment, but [SCH] physician [sic] reported to the social worker that the child's delay in speech and social skills may be caused by malnourishment and social deprivation.” (Id.)
• “The parents continue to be very evasive with questions asked by health care providers and the Department about previous health care.” (Id.)
• Information is being gathered by “the [SCH] SCAN team to attempt to determine if the medical neglect was a case of mother's obstructing medical care, or if the maltreatment is related to a more insidious mental health crisis being experienced by the mother. According to [SCH] staff, based on preliminary information gathered, the mother was at the very least obstructing needed medical care for the child.” (Id. at 5.)
• “At this time, the Department has grave concerns about both parents and their ability to safely parent these two children.” (Id.)

A 72-hour dependency hearing was held from October 28 to October 30, 2013, to determine if J.L. should be placed in out-of-home care pending a final dependency determination. (See FAC ¶ 59.) An interpreter was present at the hearing (See, e.g., 2d Chen Decl. ¶ 4, Ex. 2 (10/28/13 Hearing Tr.) at 2-14.) At the hearing, Ms. Danner testified that J.L.'s health care providers “continue to have concerns about gross malnourishment.” (10/28/13 Hearing Tr. at 4.) Dr. Migita testified that J.L. presented with gross malnutrition. (See 2d Chen Decl. ¶ 4, Ex. 3 (10/29/13 Hearing Tr.) at 2.) Dr. Migita further testified that upon admission to SCH on October 24, 2019, “lab values indicated that he was potentially entering into acute renal failure presumably from lack of fluid intake.” (See id.) Dr. Migita stated that while in SCH's care, J.L. “seems quite content while eating” and did not show signs of spitting out food. (See Id. at 4.) Dr. Migita also testified that J.L.'s behavior could be explained by “reactive attachment disorder, anxiety related diagnoses, or PTSD, as well as autism, ” but “we've witnessed enough social engagement to become less concerned about autism and more concerned about a reactive attachment issue or an anxiety issue.” (See Id. at 8.)

         Dr. Green and Dr. Gbedawo provided testimony in support of Ms. Chen. (See Barbara Decl. (Dkt. # 191 (sealed)) ¶ 2, Ex. A at 14-15.) Commissioner Mark Hillman stated on the record that he “didn't even know [J.L.] was autistic until [he] heard from Dr. Green.” (10/28/13 Hearing Tr. at 14.) Commissioner Hillman heard testimony “through the mother's exhibit, that [J.L.] has not gained any weight for approximately one year.” (2d Chen Decl. ¶ 4, Ex. 1 (10/30/13 Hearing Tr.) at 7.)

         Commissioner Hillman further stated that “[t]he autism report that I read, it seemed to support a diagnosis of autism” for J.L. (2d Chen Decl. ¶ 4, Ex. 1 (10/30/13 Hearing Tr.) at 5.) It was “unfortunate that Dr. Migita apparently didn't get provided with a copy of that report or have access to that report, ” and the court was “very hopeful that Dr. Migita will get a copy of that within 24 hours.” (Id.) The court addressed the potential effect of autism on J.L.'s weight: “It may be because, as an autistic child, he has problems digesting and absorbing food, but I have evidence that since his admission into Children's Orthopedic Hospital, he has been eating almost every food they give him with no apparent distress and he has gained 1.8 pounds.” (Id. at 8.) The court did not fault Ms. Chen for taking J.L. to Dr. Green or a naturopath, but based on J.L.'s failure to gain weight for a year, followed by gaining 1.8 pounds in one week at SCH, in addition to his being diagnosed with malnourishment, meant that DSHS had met its burden to show reasonable cause that keeping J.L. with his parents could create substantial harm.[7](Id. at 8-9.) The court ordered out-of-home placement and visitations. (See Barbara Decl. ¶ 2, Ex. A at 20.)

         Commissioner Hillman noted uncertainty regarding “whether the mother or father has actually fed [J.L.] all of the food that Dr. Green and Dr. Gbedawo wanted them to be feeding him.” (10/30/13 Hearing Tr. at 12.) However, Commissioner Hillman also stated “[t]he one thing that shelter care will show us, frankly, is whether [J.L.] will continue to show improvement on his weight as well as improvement on the symptoms of his autism . . . the shelter care period is going to show us whether we're going to have a long-term improvement on his nutrition. Because if Dr. Gbedawo is right, he may show improvement for a little bit and then he's going to turn around because the GI problems are going to come back in. And if the GI problems come back in outside the parents' care, well, guess what?” (Id. at 11-12.)

         C. Post-Hearing Investigation and Foster Care

         Ms. Danner did not pass Dr. Green's autism report to Dr. Migita, but Rosalyn Dilorio with the Attorney General's Office (“AGO”) emailed Dr. Migita on October 21, 2013, telling him that the court “wanted you to get the Autism report from Lakeside Autism Center. I think Kim is going to get that to you.” (2d Lo Decl. ¶ 8, Ex. 7 at 2.) On November 3, 2013, J.L. weighed in at 14.6 kilograms (32.19 pounds), up from the 12.2 kilograms (26.9 pounds) he weighed on October 24, 2013. (RED01126.)

         Ms. Danner completed an investigative assessment and emailed it to, among others, David Peterson and Jill Kegel, on November 15, 2013. (2d Lo Decl. ¶ 6, Ex. 5 (“Investigative Assessment”) at 1.) The Investigative Assessment states that the “[i]nitial referral was [a] 24-hour response referral, made by health care providers, alleging that the parents had been advised by the provider to take the child to the ER immediately, and had not.” (Id. at 7.) It reports that J.L. “has been diagnosed with Autism by the Lakeside Clinic; however, the attending doctor at Children's reports that they suspect an attachment disorder, and also believe that a lot of what the child is experiencing with developmental delays is due to gross malnourishment and social deprivation.” (Id. at 6.) It also states that the parents “have remained completely unwilling to talk to [the social worker] about anything that doesn't involve visitation, including their parenting practices.” (Id.)

         On November 12, 2013, Ms. Chen filed a motion for revision of the court's shelter care order. (Barbara Decl. ¶ 2, Ex. A at 36.) At the time, Ms. Chen did not have access to updated medical records Ms. Chen had requested from Ms. Danner. (2d Chen Decl. ¶ 73.) Ms. Chen hired a new attorney, Linda Lillivek, who appeared on November 14, 2013. (2d Chen Decl. ¶ 74; Barbara Decl. ¶ 2, Ex. A at 42.) Ms. Lillivek requested production of updated medical records from the state, but was unable to obtain them before the 30-day hearing. (Id.) Ms. Chen contends that if she had access to the updated records, she could have brought the fact that J.L. lost weight while in foster care to the court's attention. (Id.) DSHS filed its response on November 20, 2013. (Id. at 44.) In its response, DSHS noted that J.L. was doing much better in SCH's case, and that he “has gained approximately 1.8 pounds in seven days”. (Id. at 50.) DSHS represented that shelter care was warranted because “[i]n the care of his parents, [J.L.] was starving, malnourished, wasting, and had potential kidney failure, a compromised liver, abnormal thyroid levels, abnormal white blood cell count, a failure to thrive, and he suffered harm to his brain and development all due to malnutrition.” (Id. at 58.) The court denied the motion to revise the shelter care order. (See Id. at 72; 2d Chen Decl. ¶ 73.)

         In a November 25, 2013, email to Ms. Danner, David Peterson, the DSHS social worker initially assigned to J.L.'s case, acknowledged that J.L. “gained 4lbs while hospitalized at Children's but has lost 2lbs since going into foster care.” (See 2d Lo Decl. ¶ 34, Ex. 33 at 4.) Mr. LaRaus responded: “First off we need to figure out how it is that the kid lost 2lbs while in foster care - that really makes it hard to blame mom's mistreatment for his low weight before he was admitted to the hospital.” (Id. at 2.)

         Ms. Danner's involvement lessened as the case was handed from Mr. Peterson to Ms. Kegel. Ms. Kegel first learned about J.L.'s case when she reviewed Ms. Danner's Investigative Assessment. (2d Lo Decl. ¶ 2, Ex. 1 (“Kegel Dep.”) at 80:22-81:3.) At her deposition, Ms. Kegel could not remember whether she met with Mr. Peterson during the transfer of the case. (Id. at 72:24-73:2.) She also reviewed the Dependency Petition and the shelter care order but did not receive a copy of the shelter care hearing transcript. (Id. at 85:22-25, 87:8-12.) She maintained contact with Dr. Quinn, but does not remember talking to Dr. Migita, Dr. Green, or Dr. Gbedow. (Id. at 89:20-90:14.)

         Ms. Chen asserts that Ms. Kegel was frequently demeaning and uncaring towards Ms. Chen. (See Id. ¶¶ 94-97.) Ms. Chen contends that Ms. Kegel prevented her from attending a neurodevelopmental evaluation for J.L. at SCH, even though several of J.L.'s providers, including Drs. Ivy Chung and Brooke Greiner, advocated that Ms. Chen should be allowed to participate. (See 2d Chen Decl. ¶ 98.) Ms. Chen also alleges that DSHS violated a court order by failing to provide a copy of J.L.'s autism evaluation to SCH providers “within 24 hours, ” leading to inaccurate reports. (See id.; but see 10/31/13 Hearing Tr. at 5 (Commissioner Hillman stating that he is “very hopeful” that Dr. Migita would receive a copy of Dr. Green's autism report within 24 hours); 2d Lo Decl. ¶ 8, Ex. 7 (AGO writing in an October 31, 2013, email to Dr. Migita that the court “wanted you to get the Autism Report from Lakeside Autism Center. I think Kim is going to get that to you.”).)

         Ms. Chen also contends that Ms. Kegel “did not tell the truth” when she “did not report, for example, that J.L. had lost two pounds in his placement, that DSHS was aware of and communicating about information suggesting I was not to blame, that J.L.'s skills had significantly regressed to the dismay of his providers, or that he had been kicked out of the daycare DSHS put him in, for behavior he did not have before.” (See 2d Chen Decl. ¶ 102.)

         On January 23, 2014, Ms. Kegel wrote to Detective D'Amico and informed her that J.L. was receiving “OT and ABA therapy to assist with the autism . . . his parents are not cooperating with any services and have tried to interfere again.” (See 2d Lo Decl. ¶ 35, Ex. 34.) On February 3, 2014, Ms. Kegel wrote in a DSHS placement referral that J.L. “has been diagnosed with Autism . . . [he] is receiving Occupational therapy and ABA therapy to address his developmental and autistic needs.” (See 2d Lo Decl. ¶ 50, Ex. 49.) On February 6, 2014, Dr. Greiner wrote to David LaRaus, copying a number of others including Ms. Kegel, stating that the “doctor's recommendations lack key services that children with autism receive . . . J.L. has autism and it is not a subtle presentation of autism. He needs and deserves the usual recommended services and supports for treatment of autism.” (See 2d Lo Decl. ¶ 37, Ex. 36 at 3.) Ms. Kegel responded to clarify that the recommendations “are in addition to the services [J.L.] is already receiving. . . . No. one is saying that [J.L.] doesn't have autism or that he needs less intensive services.” (See Id. at 2.) Ms. Kegel responded a second time to clarify that “there have been some questions from providers about whether [J.L.] is on the ASD based on his immediate presentation before them - or if he could have delays that stem from another cause. However [DSHS] is not taking the position at this time that he is not ASD, we are just seeking input from all possible sources on appropriate services.” (See id.)

         Ms. Chen contends that J.L. suffered from not receiving proper care for his autism and GI issues while in foster care. (2d Chen Decl. ¶ 45.) She describes a number of behavioral issues J.L. developed while in foster care, including biting, screaming, and hitting. (2d Chen Decl. ¶ 42.) Ms. Chen states that a number of those issues continued after J.L. was returned. (See id.) Ms. Chen also contends that DSHS cancelled and postponed visitations on several occasions and put unfair restrictions on the visits when they did occur. (See 2d Chen Decl. ¶ 78-89, Ex. 13.) Ms. Chen alleges further that DSHS did “not follow up on the initial concerns of the dependency court.” (2d Chen Decl. ...


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