Date: September 5, 2018
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTSâ
MOTION TO DISMISS
Rosemary Connolly, Justice of the Superior Court
The current litigation arises from the circumstances
surrounding the placement of minor children
A.S. 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 Childrenâs Hospital.
Plaintiffs allege 193 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 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.
following is drawn from the allegations in the Complaint,
which are assumed to be true for the purposes of this motion.
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 Childrenâs Hospital via an ambulance. The
childâs father Mr. Sullivan and his grandmother, Tonna
Epstein, followed the ambulance in their vehicle.
Childrenâs Hospital, doctors ordered A.S. to undergo a CT
scan in order to rule out spinal
meningitis. While initially clear, the CT scan revealed a
small amount of blood on A.S.âs brain upon a second review.
Because his family was unable to explain any cause for the
injury, Childrenâs Hospital staff filed a 51A
Report with the Department of Children and
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."
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.âs condition. Mrs. Sullivan-White called her
sister, a nurse, and Mr. Sullivan called his stepfather and
A.S.âs 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.âs hospital room. Mr.
Kennedy objected to Mr. Epsteinâs presence. Fortunately, at
about this time, A.S.âs doctor informed the family and Mr.
Kennedy that the blood would be reabsorbed and that A.S.
should be "fine."
Mr. Kennedy sought to. speak with Mr. Sullivan and Mrs.
Sullivan-White. Over Mr. Kennedyâs 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 "thatâs
what they did to their baby."
point, Mr. Epstein told Mr. Kennedy that his behavior was
totally inappropriate and further that Kennedyâs information
was contrary to the doctorâs 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 familyâs 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.
Unbeknownst to the family, Mr. Kennedy put in an order
stating that medical staff was not to discuss A.S.âs
condition with anyone other than himself. A.S.âs parents
repeatedly asked A.S.âs 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.âs condition and that the family wanted to know A.S.âs
actual condition. While Mr. Epstein said this, Mr. Kennedy
stood behind the doctor, "mouthing and mimicking"
the hospitalâs 51A Report and Mr. Kennedyâs 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.âs 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.
of their concern regarding Mr. Kennedyâs behavior, the
Plaintiffs decided they would deliver W.S. to "some
other individual" at DCFâs 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.âs 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.
evening, on December 24, 2014, DCF Social Worker Elaine
Thurberg arrived at Mr. Epsteinâs 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. Thurbergâs demeanor, Mr. Epstein advised
the parents to contact Ms. Thurberg on December 26th and to
bring W.S. to her then.
the next day, on December 25th, Mr. Kennedy and DCF Social
Worker Elise Richardson came to Mr. Epsteinâs residence,
demanding A.S.âs 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.âs location-both of which Mr. Epstein
Epstein then asked Mr. Kennedy, "[W]hy donât you say
what you said in front of these witnesses that if you donât
get the child tonight he will never go with a family
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.
next day, on December 26th, Mr. Epstein e-mailed Ms. Thurberg
and her supervisor, Jean Macchi. Ms. Macchi replied,
explaining that Mr. Kennedyâs affidavit prevented her from
placing the children with Mr. and Mrs. Epstein. However, she
would attempt to place the children with family members or
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-Whiteâs sister and
A.S.-after his hospital release that day-with Mrs.
Sullivan-Whiteâs 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.
Plaintiffs allege that Mr. Kennedy referred the case to the
District Attorneyâs 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 ...