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Judge Bertlesman denies ‘qualified immunity’ to social workers in Holly and David Schulker’s lawsuit

By Judy Clabes
KyForward publisher

U.S. District Senior Judge William O. Bertelsman issued a rare ruling in a Covington lawsuit when he denied “qualified immunity” for two social workers employed by the Kentucky Cabinet for Health and Family Services. “Qualified immunity” is rarely – if ever – set aside for social workers in Kentucky, growing as it does from “sovereign immunity” of the state.

The lawsuit was filed against social workers Elizabeth Kammer and her supervisor, Alison Campbell, by Holly and David Schulkers of Fort Thomas and five of their minor children.

It involves the social workers’ handling – or mishandling – of the drug-test of a new mom’s urine sample that turned into a comedy of errors extending months after the baby’s birth.

Holly and David Schulkers

Except, for the Schulkers, there was nothing to laugh about.

Two years ago, Holly and David Schulkers were the new parents of a healthy baby girl born at St. Elizabeth Hospital, celebrating a new addition to their blended family of five other children.

Enter a hospital social worker who informs Holly that her urine test showed “a presumptive positive” for opiates. She told Holly that the baby’s umbilical cord had been sent for testing that would be more conclusive.

“At this point, we weren’t really concerned,” said David Schulkers. “We were naive, I guess. We just thought everything would be ok, that it would be cleared up and go away.”

They had the advantage of real knowledge. They knew Holly didn’t go anywhere near drugs. She is a pre-school teacher and volunteered in her kids’ school cafeteria. She coached her son’s basketball team. She was the busy mom and stepmom to five young children, then aged 8-13.

She told the hospital social worker that she took some cough syrup and that she had eaten “Stacey’s Everything Bagel Chips” which contained poppy seeds.

Holly was breastfeeding her healthy baby, yet the hospital social worker made the decision to enter “Substance Use Disorder” on Holly’s chart and reported the “positive drug screen” electronically to the Cabinet for Health and Human Services without waiting for follow-up tests, according to court documents.

From then on it appeared to be bureaucratic self-drive writ large.

The CHFS intake worker accepted that hospital report and without asking for the umbilical cord test results or talking to anyone at the hospital concluded that Holly posed a “Risk of Harm.” The case was assigned to new social worker Elizabeth Kammer and supervisor Alison Campbell.

Meanwhile, Holly is told her dismissal from the hospital will be delayed and that the baby has to be kept for 72-hours of observation. She voluntarily agrees to undergo further drug testing including eventually a hair follicle test.

The day after the birth, however, Kammer and Campbell present Holly and David with a “Prevention Plan” – and a threat. Sign it or face further legal consequences, including – in big letters stamped permanently on the form – “ABSENT EFFECTIVE PREVENTATIVE MEASURES FOSTER CARE IS THE PLANNED ARRANGEMENT FOR THIS CHILD.”

The Schulkers say in court documents that they felt they had no choice but to sign if they were going to be allowed to take their baby home.

All Cabinet employees testified in their depositions that, in fact, there never existed a plan of foster care for the baby even though they told the Schulkers exactly that.

But at this point, the Schulkers no longer thought this was going to go away.

Holly’s OBGYN Dr. James Otrembiak enters on her chart that poppy seeds are “among the products that can cause a false positive for opiates on a drug screen” and “She showed me the bag!”

Holly’s hospital caregivers are in agreement that the original test was a “false positive.”

A second urine test and the umbilical cord test both come back negative. Later, so did an additional hair follicle test.

Kammer is informed of the results.

A day later, Holly and her baby are released from the hospital “under the supervision of an approved supervisor,” per the “Prevention Plan” they have signed.

The next day, Holly calls Kammer and asks to be released from the “Plan” given the results of new drug tests. Kammer calls Campbell who refuses to lift the restrictions.

In full knowledge of the new test results, Kammer and another CHFS employee go to the schools of the Schulker’s children – aged 8 to 13 – and have them brought one-by-one into a closed room to be interviewed. No school personnel familiar to the children were allowed in the room.

Each child, according to court documents, is asked about “mommy’s drug use,” family discord, alcohol consumption and other personal family matters. By the time they return home that afternoon, the children are in tears – and terrified for their mom. “Are you going to jail, mommy?” they ask.

Alison Campbell’s supervisor tells her to lift the restrictions upon the Schulkers. Campbell refuses to do so and keeps Holly under the requirements of the Prevention Plan.

All this time, Holly cannot be with any children – including her own – alone. David has taken time off work to “supervise,” and his mother – “the world’s best mother-in-law,” according to Holly – pitches in too.

“We were feeling the pressure – in addition to having a new baby – of coaching soccer and basketball and working with scholastic competitions,” said David. “And the kids were feeling it too.”

The Schulker and three daughters.

A month later, the “Plan” had not been lifted. It was two months after the Schulkers left the hospital that they were informed by mail that the “Plan” was lifted and the case marked “unsubstantiated.”

Attorney Paul Hill filed a lawsuit on behalf of the Schulkers on May 4, 2017, claiming that the defendants violated their Constitutional Rights of Family Integrity and the childrens’ rights to be free from unlawful seizure at their school. Hill has alleged that the Cabinet acted in bad faith, in part in order to obtain federal reimbursement funds.

His co-counsel are attorneys Andy Busald and Gail Langendorf.

When Hill took the case he immediately spotted a familiar name, Alison Campbell. He was the attorney in a child abuse case in 2009 involving a disturbed 7-year-old and a wrongly-accused school counselor. Campbell aggressively pursued the school counselor but was ultimately dismissed from the lawsuit based on “qualified immunity.” The City of Covington ended up paying in excess of $1 million for the “false arrest” actions of a police officer influenced by Campbell. The case took seven years to resolve, in which time the school counselor was dismissed from his job. Ultimately the Cabinet withdrew the complaint against the counselor, marking it “unsubstantiated.” Too late to save the counselor’s job or his dignity, he moved west and is working in eldercare services.

The Cabinet filed a motion to dismiss the Schulkers’ lawsuit, but Judge Bertlesman ruled on all counts in their favor. The ruling means that they are entitled to a jury trial on all issues and the jury will determine the amount of damages. The Cabinet has the right to appeal the case to the 6th Circuit Court of Appeals prior to a jury trial, but if it does so, it risks the creation of an established precedent on “qualified immunity” for its employees.

Judge Bertlesman

For Holly, the tipping point toward a lawsuit came when the children were terrorized in the school interviews.

“The kids were so confused,” she said. “Blindsided. They had no idea what was happening or why.

“We had to have ‘grown-up’ conversations with the children that we just shouldn’t have had to have. . . We knew we couldn’t be the only people this happened to – and we didn’t want it to happen to anyone else.”

For David, it became a matter of not allowing others to “have power over you.”

“We are teaching our kids to stand up to people who have wronged you, and that’s what we’re doing,” he said. “We also teach them that if you make a mistake, you own it – and that’s what we want these folks to do.”

Holly has returned to her pre-school teaching job and to her volunteer activities at the kids’ schools, and things are moving back to normal. But she hasn’t yet put the memory of living in fear for a few months when every knock at the door could mean someone was coming for the children.

“I was elated to read the Judge’s opinion,” she said. “It was some vindication of what happened to us.”

Johann Herklotz, General Counsel in the Office of Legal Services for the Cabinet for Health and Family Services, says the Cabinet plans to appeal the denial of qualified immunity to the 6th District.

“We do not agree that the matters addressed in the opinion constitute clearly established law,” Herklotz said.

Paul Hill

A key issue in the case is whether social worker employees may be sued personally for damages for protecting vulnerable children from potential abuse, Herklotz said.

The Supreme Court has said that “public officials cannot be sued for damages that they had to pay personally out of their own pockets unless they violate ‘clearly established’ case law,” said Herklotz. “Without this qualified immunity, social workers would be afraid to do their important jobs.”

Hill says he smells desperation on the part of the Cabinet.

“In order for the 6th Circuit to overturn Judge Bertelsman’s decision, they would have to find that it was OK for the social workers to commit fraud and coercion, threatening foster care upon this mother in order to obtain an agreement to submit to them.”

As to the claim that the social workers themselves would have to pay the judgments, Hill said, “That’s not what happens in these cases…the Cabinet pays the judgments. They trained these workers and stamped those plans.

“Take some accountability for what happened here. . . Should the workers have carte blanche to violate the rights of families at their whim?”

An appeal would go to 6th District Court – with the possibility that Judge Bertelsman’s ruling could be upheld and truly set a precedent for the future of “qualified immunity.”

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