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Sullivan-White v. Commonwealth

Superior Court of Massachusetts, Suffolk

August 29, 2018

Anthony SULLIVAN-WHITE et al.[1]
COMMONWEALTH of Massachusetts et al.[2]

          File Date: September 5, 2018


          Rosemary Connolly, Justice of the Superior Court

The current litigation arises from the circumstances surrounding the placement of minor children A.S.[3] and W.S. into foster care. Following Care and Protection proceedings that ultimately returned the children to their parents, A.S., W.S., their father Brian Sullivan, their mother Kelley Sullivan-White, their paternal grandmother Tonna Epstein, and their paternal step-grandfather Paul Epstein filed suit against the following defendants: Commonwealth of Massachusetts (Commonwealth); Linda Spears, Commissioner; Department of Children and Families (DCF); William Kennedy; Michael Burke; Shannon Snyder; Elise Richardson; Ann Marie Lynch; Josephine St. Saleh; Celeste Wilson; and Boston Children’s Hospital.

         The Plaintiffs allege 193[4] causes of action, including intentional infliction of emotional distress, negligence, deceit, defamation, perjury, loss of consortium, Racketeer Influenced and Corrupt Organization ("RICO") Act violations, "constitutional rights" violations, conspiracy to violate "constitutional rights," Fourth Amendment violations, and conspiracy to violate Fourth Amendment rights. Pursuant to Mass.R.Civ.P. 12(b)(6), defendants DCF[5] and William Kennedy, Michael Burke, Shannon Snyder, Elise Richardson, Ann Marie Lynch, and Josephine St. Saleh (collectively referred to as the "Individual DCF Defendants") now move to dismiss all counts, against them, contending that the Plaintiffs failed to allege sufficient facts to plausibly state their claims and that the defendants are protected by sovereign, absolute, and qualified immunities. For the reasons set forth below, the motion to dismiss is ALLOWED in part and DENIED in part.


         The following is drawn from the allegations in the Complaint, which are assumed to be true for the purposes of this motion.

         On December 23, 2014, parents Brian Sullivan and Kelley Sullivan-White brought their eleven-week-old son, A.S., to his pediatrician after A.S. had become ill and vomited. Finding only signs of dehydration, the pediatrician instructed the parents to bring A.S. to South Shore Hospital, where medical professionals confirmed that A.S. was dehydrated and gave him fluids. While determining the cause of his illness, he was administered what was described as a "traumatic spinal tap," which left A.S. "shrieking in pain." South Shore Hospital eventually transported A.S. and his parent Mrs. Sullivan-White to Children’s Hospital via an ambulance. The child’s father Mr. Sullivan and his grandmother, Tonna Epstein, followed the ambulance in their vehicle.

          At Children’s Hospital, doctors ordered A.S. to undergo a CT scan[6] in order to rule out spinal meningitis. While initially clear, the CT scan revealed a small amount of blood on A.S.’s brain upon a second review. Because his family was unable to explain any cause for the injury, Children’s Hospital staff filed a 51A Report[7] with the Department of Children and Families (DCF).

         By this time, twenty-four hours had elapsed since Mr. Sullivan first took A.S. to see his pediatrician. The parents, who had stayed with A.S. at the hospital, had not slept. Eventually, A.S. was moved to a room, where his parents also hoped to rest. At that time, DCF Social Worker William Kennedy arrived, demanding to speak with them. Explaining that they wanted to rest before speaking to him, the parents sought to postpone the interview with Mr. Kennedy. However, Mr. Kennedy informed them that they had to meet with him immediately. His demeanor became "aggressive and demeaning" as he told the parents that "because of them their baby was now blind and retarded and they better confess."

         Mrs. Sullivan-White and Mr. Sullivan became "extremely upset" at what Mr. Kennedy told them, especially because it contradicted what they were told by medical professionals regarding A.S.’s condition. Mrs. Sullivan-White called her sister, a nurse, and Mr. Sullivan called his stepfather and A.S.’s grandfather, Paul Epstein, who is also an attorney and a named plaintiff in this action. Mr. Epstein came to the hospital and met with the family in A.S.’s hospital room. Mr. Kennedy objected to Mr. Epstein’s presence. Fortunately, at about this time, A.S.’s doctor informed the family and Mr. Kennedy that the blood would be reabsorbed and that A.S. should be "fine."

         Again, Mr. Kennedy sought to. speak with Mr. Sullivan and Mrs. Sullivan-White. Over Mr. Kennedy’s objection, Mr. Epstein joined the parents in their conversation with Mr. Kennedy. While Mr. Kennedy began with general questions, delivered in a calm manner, his demeanor soon changed. He yelled at Mr. Sullivan and Mrs. Sullivan-White, telling them that their baby was going to be "blind and brain dead" so they "better confess." Mr. Kennedy then shook his hands and arms violently, telling the parents that "that’s what they did to their baby."

         At this point, Mr. Epstein told Mr. Kennedy that his behavior was totally inappropriate and further that Kennedy’s information was contrary to the doctor’s prognosis for A.S. Mr. Kennedy then became aggressive and demeaning toward Mr. Epstein. Mr. Kennedy then sat down, "appear[ing] to be bothered by numerous tics" and "talking in sound bites that had no relation to the conversation." The complaint states that, based on the family’s interactions with Mr. Kennedy, they believed Mr. Kennedy to be "mentally ill" and agreed to make sure that Mr. Kennedy would not be with A.S. alone.

          Unbeknownst to the family, Mr. Kennedy put in an order stating that medical staff was not to discuss A.S.’s condition with anyone other than himself. A.S.’s parents repeatedly asked A.S.’s nurse for updates about his condition. However, the nurse could only tell them that she did not know and that they would have to ask the doctor. Finally, Mr. Epstein requested the nurse to have the doctor talk to the family. About an hour later, the doctor arrived, followed by Mr. Kennedy. Mr. Epstein informed the doctor that Mr. Kennedy was giving the family false information about A.S.’s condition and that the family wanted to know A.S.’s actual condition. While Mr. Epstein said this, Mr. Kennedy stood behind the doctor, "mouthing and mimicking" Mr. Epstein.

         Given the hospital’s 51A Report and Mr. Kennedy’s investigation, DCF commenced Care and Protection proceedings, seeking custody of both A.S. and his brother, twenty-two-month-old W.S., on December 24, 2014. After Mr. Kennedy informed the family of this, he told Mr. Sullivan, Mrs. Sullivan-White, and Mr. Epstein to leave A.S.’s room. Mr. Epstein declined, telling Mr. Kennedy that he would leave once Mr. Kennedy answered his questions. Mr. Kennedy stated he intended to call security and left the room.

         Because of their concern regarding Mr. Kennedy’s behavior, the Plaintiffs decided they would deliver W.S. to "some other individual" at DCF’s local office. Mr. Epstein and Mr. Sullivan then left the hospital, but Mrs. Sullivan-White-who was still breast-feeding A.S.-decided to stay with A.S. Within minutes, however, two police officers came into A.S.’s room and informed Mrs. Sullivan-White that she would have to leave not only the room but the hospital campus. Accordingly, Mrs. Sullivan-White-without shoes, a jacket, or her pocketbook-was escorted outside to wait until her family returned to pick her up.

         That evening, on December 24, 2014, DCF Social Worker Elaine Thurberg arrived at Mr. Epstein’s home. Mr. Epstein explained the events of the last day to her, and Ms. Thurberg gave him her card and told him to contact her on December 26th. Satisfied with Ms. Thurberg’s demeanor, Mr. Epstein advised the parents to contact Ms. Thurberg on December 26th and to bring W.S. to her then.

         However, the next day, on December 25th, Mr. Kennedy and DCF Social Worker Elise Richardson came to Mr. Epstein’s residence, demanding A.S.’s older brother, W.S. Mr. Epstein informed Mr. Kennedy that W.S. was not present in his home. The Plaintiffs allege that Mr. Kennedy informed Mr. Epstein that if W.S. was not brought to him "that day" then W.S. would "never [be placed] with a family member." Mr. Kennedy and Ms. Richardson then left. However, they returned later that same night, at approximately 9:30 p.m., with four police officers. Mr. Kennedy accused Mr. Epstein of having W.S. and of knowing W.S.’s location-both of which Mr. Epstein denied.

         Mr. Epstein then asked Mr. Kennedy, "[W]hy don’t you say what you said in front of these witnesses that if you don’t get the child tonight he will never go with a family member[?]"

         Ms. Richardson, grinning, replied, "[W]e do that all the time and now [...] they will never go to family members." After this exchange, Mr. Epstein shivered, felt nauseated, and vomited.

         The next day, on December 26th, Mr. Epstein e-mailed Ms. Thurberg and her supervisor, Jean Macchi. Ms. Macchi replied, explaining that Mr. Kennedy’s affidavit prevented her from placing the children with Mr. and Mrs. Epstein. However, she would attempt to place the children with family members or friends.

         As previously decided, Mr. Epstein, Mr. Sullivan, and Mrs. Sullivan-White brought W.S. to DCF on Friday afternoon. Ms. Macchi placed W.S. with Mrs. Sullivan-White’s sister and A.S.-after his hospital release that day-with Mrs. Sullivan-White’s friend in Scituate. For the next four months, the parents of the children were only able to see their children-who were placed in separate locations-for one hour a week.

          The Plaintiffs allege that Mr. Kennedy referred the case to the District Attorney’s office for potential criminal complaints. Because of this, DCF Social Worker Shannon Snyder informed Mr. Sullivan and Mrs. Sullivan-White that they could not regain custody ...

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