Jennifer granholm in her official capacity




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1IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

Civil Action No._______________
LYNNAE L. :

:

Plaintiff, :

:

v. :

:

JENNIFER GRANHOLM in her official capacity :

as Governor of the State of Michigan; :

MICHIGAN DEPARTMENT OF HUMAN :

SERVICES – “DHS” (FORMERLY FAMILY :

INDEPENENCE AGENCY- “FIA”); :

MARIANNE UDOW, in her official capacity of :

Director of DHS; MIDLAND COUNTY DHS; :

SHELLY MARNER, individually and in her official:

capacity as a supervisor and caseworker for the :

Midland County DHS Child Protective Services; :

LARRY HYCKI, individually and in his official :

capacity as a caseworker for Midland County :

DHS Child Protective Services; DAN ROGALNY, :

individually and in his official capacity as a :

caseworker for Midland County DHS Foster Care; :

KATHY COZAT, individually and in her capacity :

as supervisor for Midland County Foster Care; :

ROBERT BOOTH and OFFICERS DOE; :

individually and in their capacity as police officers :

for the City of Midland Police Department :

LINDA WEISS, individually and in her official :

capacity as a Midland County Court referee; :

COUNTY OF MIDLAND, CITY OF :

MIDLAND, MICHIGAN; CITY OF MIDLAND :

POLICE DEPARTMENT :

:

Defendants. :


COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF AND DAMAGES


INTRODUCTION

  1. This is a civil rights action brought pursuant to 42 U.S.C. § 1983 challenging the constitutionality of certain provisions and portions of the Child Protection Law of the State of Michigan, §722.628(8), both facially and as applied against Plaintiff. Plaintiff also seeks an injunction prohibiting Defendants from enforcing the challenged provisions in the future, as well as a declaration that those provisions are unconstitutional.

  2. This is a civil rights action brought pursuant to 42 U.S.C. § 1983 in which the Plaintiff seeks compensatory and punitive damages against the Defendants in their individual capacities and compensatory damages against the municipal Defendants for violation of the Plaintiff’s rights guaranteed them under the First, Fourth and Fourteenth Amendments to the United States Constitution and under Art. I § 11 and 17 (1) of the 1963 Constitution of the State of Michigan.

  3. Plaintiff further seeks declaratory relief that as applied by the Defendants § 722.628(2) & (8) et seq; § 750.138 MCL; § 750.350a(1) MCL et seq; § 712A.1 et seq. MCL; § 712A.10(1) et seq MCL; § 712A.13 MCL; § 712A.14 MCL; § 712A.15 MCL; § 24.271 et seq MCL and CFP 713-1, CFP 713-3, CFP 715-2, CFP 715-3 of the Children’s Protective Service Manual and the State of Michigan and/or Midland County and City Protocol for Emergency Removal and Placement of Minors (together with other statutes and procedure which may be identified in the course of this action referred to collectively as hereafter as the “Statutes and Protocols”) violated Plaintiff’s rights guaranteed them under the First, Fourth and Fourteenth Amendments to the United States Constitution and under Art. I, § 11 and 17(1) of the Constitution of the State of Michigan.

  4. Defendants’ actions have already deprived and will continue to deprive Plaintiff of her paramount rights and guarantees provided under the United States and Michigan Constitutions.

  5. Each and every act of Defendants alleged herein was committed under the color of state law.

  6. Plaintiff further seeks permanent injunctive relief prohibiting Defendants from engaging in the conduct declared to be in violation of the Plaintiff’s constitutionally protected rights and from enforcing Statutes and Protocols in the manner complained of herein.


JURISDICTION AND VENUE

  1. This Court has original jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. §§ 1331 and 1343. The Court has jurisdiction over the request for declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. The Court has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

  2. Venue is proper in the Western District of Michigan pursuant to 28 U.S.C. § 1391(b), because Plaintiff and her children reside in this district, Defendant’s Jennifer Granholm and Marianne Udow along with the primary Department of Human Services Agency operations are located and headquartered within this district. Actions originally arose in Midland County but subsequent actions have spread to encompass Montcalm, Barry, Genesee, Charlevoix and Emmet Counties.

PARTIES

  1. Plaintiff Lynnae L .is a citizen of the United States and at the commencement of this action was a resident of Midland County, Michigan. Subsquently Plaintiff was a resident of Portland, Oregon and Sheridan, Michigan. Plaintiff’s principal address is Sheridan, Michigan and located within the Western Judicial District of the State of Michigan. Plaintiff Lynnae L. is the parent of; Ms Mary Harter, then-minor L.E.L; and current minor E.J.L. who all reside in Charlevoix and Emmet Counties and are located within the Western Judicial District of the State of Michigan.

  2. On May 28th, 2004 the date of the Defendants’ actions complained of; Plaintiff Lynnae L. was the parent of and had legal care, control and custody of both minor children and they all resided together at the family home in Midland, Michigan.

  3. Plaintiff, Lynnae L. as the parent of both children; who at all times material, had enrolled the minor children as students in the Calvary Baptist Academy; a private Christian school and church located in Midland, Michigan and attended many other extra curricular school and church activities including a variety of church services, Bible study, youth group, parenting classes, sports programs, and counseling, to name a few.

  4. Defendant Jennifer Granholm as Governor and former Attorney General for the State of Michigan, has known for many years, has at all times material, had specific knowledge state employees/caseworkers of DHS routinely and systematically violate constitutionally protected rights of parents and children, federal and state mandates and statutes, and stated Policies and Procedures of DHS under the guise of child protection and is being sued in her official capacity. Pursuant to Article V, Section 1 of the Constitution of Michigan of 1963, the executive power of the State is vested with the Governor. Pursuant to Article V, Section 8 of the Constitution of the State of Michigan of 1963, the governor is responsible for ensuring that all executive departments and agencies within the State, including DHS, faithfully execute and comply with applicable federal and state law. Governor Granholm maintains her principal office at the Office of the Governor, 111 S. Capitol Avenue, George W. Romney Building, Lansing, Michigan 48933.

  5. Defendant Marianne Udow, is the Director of Michigan Department of Human Services has known for many years, has at all times material, had specific knowledge state employees/caseworkers of DHS routinely and systematically violate constitutionally protected rights of parents and children, federal and state mandates and statutes, and stated Policies and Procedures of DHS under the guise of child protection and is being sued in her official capacity. Pursuant to Sections 400.3 of the Social Welfare Act, MCL § 400.1 et seq. and Executive Reorganization Order E.R.O. No. 2004-4, Director Udow is responsible for administering all DHS child welfare services and programs and assuring that all such services and programs operate in conformity with constitutional, statutory, and regulatory requirements. Director Udow maintains her principal office at the Department of Human Services, 235 S. Grand Avenue, Lansing, Michigan 48909.

  6. Defendants have been knowledgeable for years of the systemic deficiencies of the Michigan Child Welfare system which inflicts substantial and often irreparable damage and harms to parents, families and the children they are allegedly protecting including but not limited to:

    1. Failure to have properly trained workers; workers are performing necessary tasks, job requirements/duties that engage them in the practice of a social work at the level, experience and training bachelor's or master's degree;

    2. Failure to follow laws and policies;

    3. Failure to recognize constitutionally protected rights of parents, families and children;

    4. Disproportionate amount of false allegations of child abuse and neglect and an inability by workers to properly distinguish between true abuse or neglect;

    5. Excessive caseloads;

    6. High caseworker turnover;

    7. Mental health and “stress” related issues of caseworkers;

    8. Improper removal of children and excessive use of “emergency removal” proceedings to gain control;

    9. Unnecessary removal of children;

    10. Any perceived resistance on the part of the parents, children, families or others is considered non-compliance and grounds for removal of a child;

    11. Improper and inappropriate establishing children eligible for Title IV-E funding;

    12. Use of threats and coercion on the part of the workers to ensure compliance by children, parents, families and others;

    13. Failure to provide reasonable efforts or services to prevent removal;

    14. Maltreatment of families, parents and children during the procedures and processes of child protection, foster care and state adoption/legally free orphans;

    15. Maltreatment to children at the hands of DHS-contracted service providers and foster parents;

    16. Excessive lengths of stay in foster care;

    17. Excessive number of moves among multiple placements;

    18. Failure to provide reunification services outside of “cookie cutter” programs;

    19. Failure to ignore/refuse any “service” not provided by a DHS-contracted service provider;

    20. Failure to lower barriers to reunification;

    21. Refusal of services to promote reunification;

    22. Failure to provide and intentional obstruction/interference of frequent and quality parenting time and contact; sibling contact; the number one most recognized “service” to promote and ensure successful reunification;

    23. Excessive numbers of parental terminations and legally-free orphans.

  7. Plaintiff is very cognizant of these and other harms and dangers of families at the hands of DHS and the child welfare system.

  8. Defendant Midland County Department of Human Services is a Department of the State of Michigan, and is capable of suing and being sued. During the times material it has known as the Midland County Family Independence Agency (FIA) and the Department of Human Services.

  9. Defendant State of Michigan Department of Human Services is a division of the State of Michigan, and is capable of suing and being sued. During the times material it was also known as the State of Michigan Family Independent Agency (FIA) and the Department of Human Services. At all times material to this action its Midland County component of the Department of Child Protection Services (CPS) section operated (and continues to operate) within the State of Michigan Department of Human Services under the Child Welfare Section – Midland County Office. (The aforementioned state agency and its related departments and section hereafter are referred to hereafter, collectively, as “DHS.”)

  10. Defendant Larry J Hycki, was at all times material to this action, a child protective services “CPS” caseworker for the Midland County DHS Child Protection Department. He is sued in both his official and individual capacity.

  11. Defendant Daniel Rogalny, was at all time material to this action, a foster care “FC” caseworker for Midland County DHS Foster Care Department. He is sued in both his official and individual capacity.

  12. Defendant Shelly Marner, was at all times material to this action, the Midland County Child Protective Services supervisor of Larry Hycki. She is sued in both her official and individual capacity.

  13. Defendant Kathy Cozat, was at all times material to this action, the Midland County Foster Care supervisor of Dan Rogalny. She is sued in both her individual and official capacity.

  14. Defendant County of Midland is a municipal corporation, existing and operating according to the laws of the State of Michigan within the Eastern Judicial District of the State of Michigan and is capable of suing and being sued.

  15. Defendant City of Midland, Michigan is a municipal corporation, existing and operating according to the laws of the State of Michigan having authority, duties and powers as provided under the laws of the State of Michigan within the Eastern Judicial District of the State of Michigan and is capable of suing and being sued.

  16. Defendant Midland City Police Department is a police department existing and operating according to the laws of the State of Michigan within the Eastern Judicial District of the State of Michigan and is capable of suing and being sued.

  17. Individual officers Robert Booth and officers John/Jane Doe are being sued in their official and individual capacities.

  18. Referee Linda Weiss is and at all time material to this action was a Midland County Probate Court referee. She is sued in her official and individual capacity.


ALLEGATIONS OF FACT

  1. Defendant Hycki is a state employee and as a state employee is required to take an oath pursuant to MCL 15.151 to uphold the Constitution of the State of Michigan.

  2. Michigan has numerous state statutes that address child protection.

  3. Michigan DHS has volumes of administrative policy and procedure for a child protective service worker and supervisor; these policies and procedures (protocols) for the state worker carry the force and effect of law.

  4. Plaintiff is known to be an outspoken activist and advocate for reform of the systemic deficiencies and failures in the areas of child protective services, foster care and all phases of the related processes. Plaintiff has openly named and described illegal and improper actions committed by Midland County DHS workers, and specifically worker Dan Rogalny, and the Midland County Probate Court judges/referees in prior public speaking arenas.

  5. On Tuesday, December 7, 2003, Defendant Larry Hycki, without any exigent circumstances, warrant or court order did go to Calvary Baptist Academy and Church; a private Christian school and church; and demanded to interview Plaintiff’s then-minor child L.E.L.

  6. Defendant Hycki was in full knowledge that Calvary Baptist Academy and Church was private property and a private school.

  7. Defendant Hycki and Midland County DHS workers/supervisors anticipated Defendant Hycki would encounter resistance by Plaintiff if his actions were known to Plaintiff.

  8. Defendant Hycki’s State of Michigan DHS training asserts any resistance by a parent or others is to be perceived as non-cooperation and non-compliance; a presumption of guilt; and grounds to use emergency proceedings to remove a child from their home.

  9. At all times all Defendants relied on the portion MCL 722.628(8) “A school or other institution shall cooperate with the department during an investigation of a report of child abuse or neglect. Cooperation includes allowing access to the child without parental consent if access is determined by the department to be necessary to complete the investigation or to prevent abuse or neglect of the child.”

  10. At all times all Defendants maintained that “school and institution” as it is written into the statute refers to
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