State asks to continue trial in civil suit against North Central Human Services

A lawyer for Ward County Social Services has asked to delay trial in a civil suit filed by a mother whose baby daughter was briefly taken into foster care after the mother had a false positive test for methamphetamine three years ago. The lawyer for Social Services wants to allow more time for its arguments that a district court judge should immediately rule in its favor because Social Services and the individual social workers have immunity under state law. The trial is scheduled to begin on Aug. 28 before North Central District Court Judge Todd Cresap. Ashley Gulke, a respresentative for plaintiff Shanika Lister, filed a motion on Friday in opposition to continuing the trial.

Lister, a practicing Rastafarian, filed suit after the baby was returned to her. The baby was born in April 2015 at Trinity Hospital with marijuana in her system. Use of marijuana is a legally protected religious practice for Rastafarians. Social Services had also alleged that the baby tested positive for methamphetamine. Lister denied using meth and tests done later on the baby showed she had no illegal drugs in her system. Lister had taken cold and flu medication for a cold shortly before giving birth to her daughter that might have caused a false positive reading.

Following a shelter care hearing, the baby was returned to her parents in the parking lot of a local grocery store about a week later.

According to court documents, Lister filed suit in July 2015 against North Central Human Services Center, Ward County Social Services, and social workers Nicci Domres and Sandra Richter after the agency sent her a letter informing her that she would be placed on the state’s child abuse and neglect information index because the baby was born with drugs in her system.

Lister appealed the “services required” decision and an administrative law judge ruled in her favor and said Lister’s use of marijuana in religious ceremonies was protected under state law. The North Dakota Department of Human Services then ignored the administrative law judge’s ruling and affirmed the “services required” letter. Lister appealed to district court and Judge Sonna Anderson reversed the Department of Human Services’s ruling on July 27, 2016, and sent the case back to the Department of Human Services with instructions to adopt the administrative law judge’s ruling.

A judge has twice denied motions for summary judgment in favor of North Central Human Service Center, according to a motion filed by Lister’s attorney, Gulke. In July, they filed another motion for summary judgment in its favor. They argued that the agency is immune from liability.

In her motion for summary judgment, Assistant Attorney General Elizabeth Fischer, representing the state agency, notes that the agency was required to do an assessment when the baby was born with marijuana in her system and, in 2015, there were no state court decisions indicating that a pregnant woman’s use of marijuana could be a protected religious practice. Lister’s lawyer, Gulke, wrote in her brief in opposition that Human Services stipulated that Lister is a practicing Rastafarian and Judge Anderson specified in her decision that Lister’s use of marijuana while she was expecting would be protected under state law so “It would not have mattered if there had been case law previously established” Fischer also argues that Human Services was required to place Lister’s name on the child abuse index and that then-Department of Human Services executive director Maggie Anderson exercised her discretion under state law when she decided to ignore the administrative law judge’s order and affirm the “services required” letter.

In her motion in opposition, Gulke also disputes some of the facts of the case that the state had claimed were “undisputed.”

While the state claims that staff told Social Services that the baby was exhibiting signs of withdrawal after birth, Gulke notes in her response that the baby was not in distress. The medical charts call the baby girl “alert and active” and say she was in “no distress.” The state also claims that Social Services made “active efforts” to avoid putting the baby in foster care and contacted Lister’s mother. However, Gulke submitted sworn affidavits from multiple family members of both the baby’s mother and father indicating that Social Services never contacted them after the baby was born and all of them would have been available to care for the baby to keep her from going into foster care with strangers. Social Services also claimed that Lister had turned down an opportunity to visit with her daughter when the baby was in foster care, prior to the shelter care hearing; Lister denies that she was ever offered such a visit. Domres said Lister’s then-attorney, Ashley Beall, had informed her that the family moved to Michigan. Beall told Domres that all communication in the case should go through her, but never told Domres the family had moved to Michigan. Gulke also writes that the “services required” decision was therefore illegal and it was illegal for North Central Human Services to place Lister’s name on the child abuse registry.

Fischer wrote in her motion that there is no evidence that Lister was defamed. The state received no known requests for disclosure of information about Lister during the time her name appeared on the registry, wrote Fischer. Gulke wrote in her opposing brief that this isn’t a guarantee it didn’t happen and the facts should be presented to a jury. During the time period in question, Gulke wrote that there is documentation that the Department of Human Services had on occasion falsified and destroyed records to protect their own workers

Gulke is referring to an investigation into the licensing of a daycare in Velva after a girl in its care drowned at the Velva City pool in June 2015. A McHenry County social worker later entered Alford pleas to misdemeanor charges that she let the childcare center continue to operate there even though its license expired a week before the drowning accident. The social worker also entered an Alford plea to a charge that she made false statements to a state crime bureau agent about the organization’s staff to child ratios and licensure status, according to past media reports. The state had also charged Anderson following that incident, but the state later dropped misdemeanor charges of criminal conspiracy and public servant refusing to perform a duty.

The state also wants a summary judgment ruling that its actions were substantially justified and Lister cannot prove that North Central Human Services intentionally inflicted emotional distress.

In a sworn affidavit dated July 30, Lister states that she has suffered up to eight panic attacks per week since the incident, has sought treatment and has an emotional support dog. She states that she is afraid to leave her children for any length of time because she is afraid that Ward County Social Services will come and take them and that she has suffered a loss of self confidence.

“It’s hard to sleep when I’m constantly mentally re-living each second of the worst (six) days of my life while hearing Nicci (Domres’) voice saying I’m a horrible mother play over and over in my head like a hateful song on repeat,” Lister said in the affidavit. “… The hurt and anger I feel affects my being on a level so acute that it’s a physical pain weighing heavily on my shoulders, an unwanted burden that nearly takes over all my happiness. I always wonder what I did wrong to deserve this and what I could have done differently.”

A hearing on the motion to continue the trial has not yet been scheduled.