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Warnick v. Briggs

October 30, 2007

SILVAN WARNICK, INDIVIDUALLY AND NATURAL PARENT AND GUARDIAN AD LITEM A.W., A MINOR; ALANNA WARNICK; CORY WARNICK AND MEGAN WARNICK, PLAINTIFFS,
v.
DAN BRIGGS, INDIVIDUALLY; ELAINE TOTTEN, AN AGENT OF THE STATE OF UTAH, DIVISION OF CHILD & FAMILY SERVICES (DCFS) IN HER INDIVIDUAL AND NOT OFFICIAL CAPACITY; DETECTIVE CHARLES KIRBY, INDIVIDUALLY; HOLLY CURTIS, INDIVIDUALLY, BRANDON WILKERSON, INDIVIDUALLY; LT. DAN GALLAGHER, INDIVIDUALLY; THE CITY OF WEST JORDAN; JOHN AND JANE DOES, DEFENDANTS.



The opinion of the court was delivered by: Dale A. Kimball, United States District Judge

MEMORANDUM DECISION AND ORDER

This matter is before the court on the West Jordan City Defendants' Motion for Summary Judgment and Elaine Totten's Renewed Motion for Summary Judgment. The court held a hearing on the motions on June 19, 2007. At the hearing, Plaintiffs were represented by Robert R. Wallace and David R. Maddox. The West Jordan City Defendants were represented by Steven W. Allred, and Elaine Totten was represented by Joni J. Jones. Before the hearing, the court carefully considered the memoranda and other materials submitted by the parties. Since taking the motions under advisement, the court has further considered the law and facts relating to these motions. Now being fully advised, the court renders the following Memorandum Decision and Order.

I. BACKGROUND

This case is about the alleged violation of a family's civil rights arising out of the removal of a minor child from the family's home without a pre-deprivation hearing. The suit is brought by, Silvan Warnick, individually and on behalf of his minor daughter, A.W, together with his wife, Alanna Warnick, and his other older children, Cory Warnick and Megan Warnick (the Plaintiffs). They have brought this § 1983 lawsuit against numerous police officers from the City of West Jordan (the West Jordan City Defendants) and Elaine Totten (Ms.Totten), a caseworker for the Division of Child & Family Services (DCFS). The operative pleading pertaining to the current motions is the Third Amended Complaint.

II. UNDISPUTED FACTS*fn1

Sometime between August 19, 2002 and August 22, 2002, A.W., a then thirteen-year-old girl, was sexually assaulted by her brother-in-law, Andrew Campos (Campos). On August 22, 2002, A.W. told her mother, Alanna, about the inappropriate touching, and Alanna reported it to the Utah DCFS. On August 28, 2004, Defendant Officer Briggs received the DCFS referral to initiate a criminal investigation. Shortly after receiving the report, Officer Briggs and a DCFS caseworker, Teresa Fowers, met with Alanna and A.W. at the South Valley Children's Justice Center. Officer Briggs took a complete, electronically recorded/video-taped statement from A.W., outside the presence of her mother. During this interview, A.W. informed Officer Briggs that she was scared and did not want to see her brother-in-law again.

Also at the August 28 meeting, Alanna advised Officer Briggs that A.W.'s older sister-and wife of the perpetrator-was going to stay in her marriage and that Alanna and her husband, Silvan, supported that decision. Alanna stated that she did not want charges brought against her son-in-law and that she and her husband had hired an attorney for him. She explained that the whole family was a victim in this situation-not just A.W. Alanna further disclosed to Officer Briggs that, after learning of the sexual assault, she had allowed Campos to be in the house to pick up some papers, but that she did not think that A.W. had seen him.

Two days later, on August 30, 2002, Alanna again spoke with Officer Briggs, at which time he wanted to conduct further interviews. Alanna told Officer Briggs that she was contacting their lawyer and would get back to him. She also advised Officer Briggs that she did not like the way he was going after her son-in-law and that she did not intend to allow A.W. to testify against him. She also explained that she was also encouraging A.W. to forgive the perpetrator so that the family could be kept together.

Based on this telephone conversation and his previous conversation with Alanna, Officer Briggs concluded that Alanna may be engaged in witness tampering and was not providing A.W. with adequate protection from the perpetrator. That evening, Officer Briggs contacted Assistant Attorney General Julie Lund with the Child Protection Division for legal advice. Officer Briggs had worked with Ms. Lund on several occasions and knew that child abuse cases were within her professional assignment. Officer Briggs related the facts and circumstances involving A.W. to Ms. Lund. Although there is some dispute as to the characterization of Ms. Lund's statements, there is no dispute that Ms. Lund said something to the effect of you, law enforcement, can remove the child if you feel like that's what needs to happen here. She also recommended placing A.W. with a relative, if possible.

That evening, Officer Briggs, along with the other WJC Defendants and Ms. Totten went to A.W.'s home.*fn2 No one answered the door and a neighbor advised Officer Briggs that the family had left about thirty minutes before and appeared to be going to dinner. The officers decided to wait at the home until the Warnicks returned from dinner.

Officer Briggs then asked another officer to contact a neighbor, Tiffanie Kirberg, to see if she knew whether Cory or Megan, A.W.'s siblings, had been seen with Mr. and Mrs. Warnick when they left for dinner. Between 9:00 and 9:30 p.m., Officer Briggs was informed that Cory Warnick, the adult son of Silvan and Alanna Warnick called the neighbor, Ms. Kirberg, from phone number 913-0692 and asked what was going on. Ms. Kirberg stated that she did not know because no one would tell her what was going on. According to Ms. Kirberg, while Cory was talking to her, Silvan Warnick took the phone from his son and also asked what was going on. Ms. Kirberg again told him she did not know and asked Silvan if he knew anything about what was happening. Ms. Kirberg then heard Alanna state, they're looking for A.W., they're looking for A.W. Silvan then said, we'll call you later, and he hung up the phone.

At approximately 10:00 p.m., Cory and Megan Warnick returned home. Officer Briggs asked them both if they knew where their parents were. Both Cory and Megan stated that their parents had left town with A.W. and that neither of them knew where they were going or if there was any way to contact them. At that time, Cory and Megan did not know that the neighbor had already told the police that Cory had recently called her and that he had been with his mother and father. Cory stated that he had not seen his parents and A.W. since earlier in the day, and that he did not know where they were. He said that he knew that they had left town sometime between noon and seven-thirty in the evening. Cory was asked several more questions about his parents' location. Cory stated that they could be anywhere and there is no specific place they go when they leave town. He then stated that the last time he saw his parents and A.W. was at about four-thirty that afternoon. When confronted with the inconsistencies, Cory declined to provide any further responses. Cory also stated that he knew of no way to contact his parents.

When Ms. Kirberg had told the officers about the phone call, she stated that she believed the telephone number, 913-0692, which appeared on her caller identification, belonged to Megan Warnick. Officer Briggs then called that number, and the cell phone on Cory's belt began to ring. The caller ID on Cory's phone verified that the incoming call was from Officer Briggs.

Cory and Megan were then advised that the officers knew they were lying, and they were informed that they could tell the officer the truth or be arrested for obstruction of justice. Neither Cory nor Megan changed their story. Megan stated that she did not know her parents' cell phone number, and if she did, it would not matter because the battery was dead. Cory and Megan were then taken into custody and subsequently given South Jordan citations for obstruction of justice.

Officer Briggs was aware that Cory was a Category II peace officer employed as a constable, and he was aware that constables frequently carry firearms. After placing Cory and Megan in custody, a protective search for weapons was performed. During the search, a cell phone was found on Megan. The officers checked the phone and found a listing for Silvan Warnick under Dad's Cell Phone.

Soon after they were placed under arrest, Megan Warnick admitted that she and Cory had gone out to dinner with their parents and A.W. at the Hometown Buffet. Officer Briggs called the number for Dad's Cell Phone and Alanna Warnick answered the phone. Officer Briggs informed her that they had just arrested Cory and Megan for obstructing justice. Alanna then put her husband on the phone.

Officer Briggs again explained that Cory and Megan had been arrested. Mr. Warnick stated then that although he had been leaving town, he would be home with A.W. in sixty to ninety minutes. He further stated that he did not know that anything was going on and that he had contacted an attorney who would be representing him and his family. Within minutes, Officer Briggs then received a phone call from a person identifying themself as Silvan Warnick's attorney, Phil Dyer, and requesting to know what was taking place. Officer Briggs explained that A.W. was the victim of an aggravated sexual abuse perpetrated by a family member, that the Warnicks were more worried about the suspect than their daughter, and they were not being appropriate with the victim. Officer Briggs further stated that as a result of comments made by Mrs. Warnick, the officers had concerns about the Warnicks' ability to protect A.W.

Officer Briggs further informed the attorney that the Attorney General's office had been contacted and authorized an emergency removal of A.W. from the home under the circumstances.*fn3 Mr. Dyer indicated that A.W.'s parents would cooperate with the removal and suggested placement with an uncle, Lemond Warnick. Shortly after midnight, Silvan and Alanna Warnick returned home and surrendered A.W. to DCFS.

Silvan requested to speak with Officer Briggs in private. He stated that he was not aware of what was going on and that his children Cory and Megan had no information about where they were, and that he didn't even know all the details about the case involving his daughter A.W. and Campos.

Officer Briggs informed Silvan of the facts leading up to Cory and Megan's arrest and of the facts regarding the sexual abuse of his daughter. Officer Briggs also spoke with Silvan about his concerns regarding Alanna's stated intent to talk to A.W. about forgiving the perpetrator and refusing to allow A.W. to testify. Silvan responded that he just did not think his wife understood the situation.

A.W. was then placed at her uncle Lemond Warnick's home pending further court order. Then, on September 3, 2002, the first business day (due to the Labor Day holiday) after A.W.'s removal, a petition was filed in the Juvenile court by Assistant Attorney General Julie Lund. This complaint alleged, among other things, that: The family was informed of [the allegations of abuse] and asked to cooperate to keep Drew [Andrew] away from A.W. while the investigation was proceeding. The family allowed Drew to visit the home after learning of these allegations and have indicated an unwillingness to let these allegations cause problems in their family. The mother has further indicated to law enforcement that A.W. would not be testifying against her brother-in-law.

On September 4, 2004, a Shelter Hearing was held before the Third District Juvenile Court at which hearing the Court found:

1. That the parties stipulated that the preliminary requirements of the Child Welfare Reform Act were met.

2. That there is a substantial danger to the physical and emotional health or safety of the child and that she could not be protected without removal based upon the alleged sexual abuse by her brother-in-law and the perception that her parents were failing to protect her from contact with him.

3. That appropriate relatives were located and they were willing to care for the child.

4. That no services were reasonably available to the caseworker, which if provided to the child or her parents would have eliminated the need for removal.

Based upon such Findings, the juvenile court concluded:

1. The removal of the child was appropriate and necessary based upon the disclosure of sexual abuse by [sic] A.W., her fear of the perpetrator and the concern that she would not be protected from contact with him.

2. The lack of preventative efforts was reasonable because there was an immediate risk of ham to the child based upon the statements made by the parents to law enforcement and the Division of Child and Family Services caseworkers.

3. It appears to be in the child's best interest to continue custody of her in an out of home placement until a safety plan can be put in place which all parties agree to abide by.*fn4

On September 4, 2002, charges were filed against Andrew Campos of three counts of Aggravated Sex Abuse of a Child. On August 25, 2003, Andrew Campos pleaded guilty to two amended counts of Attempted Sex Abuse of a Child, a third degree felony.

Regarding the specific involvement of Elaine Totten, she was the DCFS caseworker on call the night of August 30, when Officer Briggs decided to remove A.W. At that time, she had been employed by DCFS for ten years, and she had had extensive training on DCFS policy, procedure, and state of Utah child protection laws and statutes.

On the evening of August 30, 2002, Officer Briggs called DCFS and requested assistance. DCFS caseworkers are required to respond to a request for assistance from any law enforcement agency. Officer Briggs told Ms. Totten that he had asked for legal advice from the Attorney General's office, Child Protection Division, and that Julie Lund had advised him that A.W. could be taken into protective custody without a warrant-and that she had suggested placing A.W. with a relative, if possible.

When Ms. Totten arrived at the scene (at the Warnick house), Officer Briggs told her that A.W. had been sexually assaulted by her brother-in-law, that he believed that A.W.'s parents were not protecting A.W., and that he did not know where she was or whether she had been subjected to further contact with the perpetrator. Officer Briggs also told Ms. Totten about how the parents had hired an attorney for the perpetrator and that they wanted to keep the family together. Officer Briggs was also concerned that the mother had told A.W. to forgive her brother-in-law and that the mother had stated that she would not cooperate with the investigation of the sexual assault and that she did not want charges filed against him. She also did not want him to go to jail. Officer Briggs also told Ms. Totten that the mother had insisted that A.W. not testify against her brother-in-law. Officer Briggs stated that A.W. had told him that she was scared of Andrew. In addition, Officer Briggs told Ms. Totten that the parents had allowed Campos in the home even after they learned of the assault.

At the Warnicks' house that night, Ms. Totten was the individual who, at the request of the officers, took Megan and Cory's cell phones. She then found their father's number listed on Megan's cell phone. Ms. Totten believed the police officers had given her a lawful order to assist them in obtaining the number from the cell phone.

Ms. Totten never discussed with Officer Briggs whether A.W. should be placed into protective custody. Officer Briggs later told Ms. Totten that A.W. would be going to stay with her aunt and uncle, and he asked Ms. Totten to drive A.W. there. Ms. Totten asked the officers to run background checks on the aunt and uncle, and the checks came back clean. Ms. Totten asked A.W. if she felt comfortable at her aunt/uncle's house, and A.W. responded that she was comfortable. Ms. Totten believed that the placement was voluntary and that A.W. was not in the protective custody of DCFS. Ms. Totten agreed with Officer Briggs' conclusion that A.W. was in imminent risk of harm. Her concern for A.W.'s safety grew after Cory and Megan had lied to the officers and refused to tell the officers where A.W. and her parents were or how to contact them.

Later that night, Ms. Totten called the initial caseworker on this case, Teresa Fowers, and told her what had transpired. Ms. Totten stated that A.W.'s placement was voluntary and that A.W. was not in DCFS custody. She asked Ms. Fowers to follow up with the case. Subsequently, Ms. Fowers' supervisor concluded that given the circumstances, A.W. was probably taken into DCFS protective custody.

III. STANDARD OF REVIEW

Summary judgment is appropriate if the record shows there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ward v. Anderson, 494 F.3d 929, 934 (10th Cir.2007); Trask v. Franco, 446 F.3d 1036, 1043 (10th Cir.2006) (quotation and citation omitted). In addition, the court considers ...


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