United States District Court, N.D. Ohio, Western Division
G. Carr, Sr. U.S. District Judge.
42 U.S.C. § 1983 action, plaintiffs, Mr. and Mrs. F.,
accuse defendants, employees of the Ottawa County, Ohio,
Department of Job and Family Services (OCDJFS), of violating
their procedural due process rights based on defendants'
removal of their daughter, B., from their home following an
allegation of sexual abuse.
is defendants' motion to strike the affidavits Mr. and
Mrs. F. submitted with their brief in opposition to
defendants' motion for summary judgment. (Doc. 81).
Plaintiffs oppose the motion (Doc. 87), and the parties have
briefed the issues extensively. (Docs. 90, 91, 92, 93). For
the reasons that follow, I grant the motion in part, and deny
it in part.
Mrs. F. are the adoptive parents of B., a teenaged daughter,
and foster parents to two younger children, son D. and
April 27, 2015, defendant Julie Barth, a supervisor in the
Children's Services Division, received an intake report
detailing B.'s complaint that her father sexually and
physically abused her. Barth assigned the matter to defendant
case worker Betsy Gordon. She and Barth reviewed the
complaint and reported the matter to the Adriel School, the
organization through which Mr. and Mrs. F. received their
foster parent licenses, and to the Ottawa County
and Gordon then went to the F. home to speak with B.
and her parents, accompanied by Deputy Matt Gandee (not a
defendant in the action) from the Ottawa County Sheriff's
answered the door when they arrived. Mrs. F. was at home but
Mr. F. was away, attending a soccer game with A. and D.
spoke to Mrs. F. while Gandee and Barth spoke to B.
privately, in a separate room. Gordon explained B.'s
allegations against her father, and Mrs. F. relayed that her
daughter had a history of sexual addiction and
traumatization. Meanwhile, in her interview with Gandee and
Barth, B. reiterated her complaints against Mr. F., which
were consistent with the allegations described in her initial
point, Gordon stepped outside to call personnel at child
welfare agencies in Lucas and Allen Counties, which held
legal custody of the younger foster children. Both agencies
informed Gordon that they would place A. and D. in respite
care outside the home pending the outcome of the
investigation into B.'s claims. Gordon also called
Adriel, which worked with Allen County to find a respite care
home for A., with a Mr. and Mrs. Hartlage. The Hartlages also
expressed a willingness to take B. in if necessary.
back inside the house, Gordon spoke to Mrs. F. to determine
how to proceed. What was, or was not said during their
exchange is at the center of the present suit.
to Gordon, she “explained to [Mrs. F.] what Lucas
County and Allen County had decided, ” then expressed
her “concerns about [B.] remaining in the home with
[Mr. F.] during the pendency of this investigation.”
(Doc. 44, ID 1042). Gordon believed separating B. and Mr. F.
“would protect [B.] from any other real or perceived
abuse, ” and “protect [Mr. F.] from any further
allegations.” (Id. at 1043). It would also
negate any suggestion that B. was “being coerced or
intimidated” by her parents in the event that she
rescinded or changed her claims. (Id. at 1043-44).
“And given the history . . . of [B.'s] violence
toward [Mr. F.], it would protect them, the parents, from any
physical anger outbursts by [B.] at this time.”
(Id. at 1044).
these issues in mind, Gordon told Mrs. F. that she had
“two options: that [Mr. F.] could leave the home while
the agency was investigating, or that [B.] could leave the
home while the agency was investigating.” (Id.
at 1042). Mrs. F. insisted “My husband is not going to
leave the home.” (Id.) Gordon asked if she
could think of “any other options” to
“ensure [B.'s] safety while we're doing this
investigation?” “And, [Mrs. F.] said,
also recalled Mrs. F. repeating her decision a second time,
stating: “No, [B.] will go. I'm not having [Mr. F.]
leave.” (Id. at 1045). Mrs. F. then began
gathering the children's things in preparation for their
stay in respite care.
F.'s recollection of the exchange is similar to, but less
specific than Gordon's. At her deposition, she testified
A. Well, like I said, I went into the family room, I sat
there for a while and [Gordon] came in. . . . I don't
remember the whole conversation, but I know she had said . .
. either your husband will have to leave or your kids will.
And I stated that I was not going to ask [Mr. F.] to leave
his own home.
Q. You considered [Mr. F.] your priority?
Q. Betsy Gordon told you didn't she that for safety
purposes, they considered it important that there be a
Q. And she said, I see the alternatives as the children
leaving or [B.] leaving or [Mr. F.] leaving. She said those
were the alternatives that she could think of; isn't that
A. An ultimatum, yeah.
Q. And she asked you do you see any other options, didn't
Q. Did you offer any other options?
A. I wasn't thinking clearly at the time. No, I
didn't, she didn't either.
(Doc. 43, ID 959-60).
also concedes that she did not expressly object to B.'s
removal while speaking to Gordon, Barth, Gandee or anyone
else on the scene:
Q. At any time during April 27, 2015, did you say this is
wrong, [B.] should stay here with me?
(Id. at 965, 960-61).
returned home with A. and D. as Mrs. F. was gathering their
belongings. He had been in contact with his wife via text
message and already informed the foster children that they
would have to leave the house, but assured them everything
would be alright. By that point, the Hartlages and a number
of other social workers had also arrived at the F. home, and
defendants decided to place B. with Mr. and Mrs. Hartlage.
his wife, Mr. F. acknowledged during his deposition that he
did not object to the removal arrangement outright:
Q. Did you ask [Barth] or [Gordon] to explain what was going
on with regard to the placement of the children?
A. When I got in, the kids were leaving. The foster parents
were there, all packed up and decisions had been made. . . .
* * *
Q. Did you propose any means by which that safety concern