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Dunkle v. Dale

United States District Court, D. Alaska

November 10, 2014

JENNIFER DALE in her individual capacity, KAREN MORRISON in her individual capacity, JESSIE LOPEZ in his individual capacity, CHRISTINE SHERIDAN in her individual capacity, DOES 1-20, Inclusive, Defendants

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For Janette Dunkle, Plaintiff: Edward Andrew Rose, Jr., LEAD ATTORNEY, Edward A. Rose, Jr., Esq., PC, Houston, TX.

For Jennifer Dale, in her individual capacity, Karen Morrison, in her individual capacity, Jessie Lopez, in his individual capacity, Christine Sheridan, in her individual capacity, Defendants: Susan Gayle Wibker, Attorney General's Office (Anch), Anchorage, AK.

For Depatment of Health and Social Services, Office of Children's Services, Defendants: Kathryn Rebecca Vogel, State of Alaska, Department of Law (Anch - suite 200), Anchorage, AK.

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Plaintiff filed a complaint under 42 U.S.C. § 1983 based on allegations that social workers and state troopers (" Defendants" ) violated her right to be free from unreasonable searches and seizures after social worker Jennifer Dale assumed emergency custody of Plaintiff's newborn infant A.F. on January 20, 2012. Plaintiff has also asserted loss of familial association, warantless seizure, false testimony, fabricated evidence, intentional infliction of emotional distress. abuse of process, and negligence as a result of the emergency removal of Plaintiff's child. Plaintiff primarily accuses social worker Jennifer Dale as the person who " seized" the child and describes the other defendants as " alter egos" who are " vicariously liable" and who " agreed upon, ratified, and/or conspired together" in the removal of the child A.F. Defendants have filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) at Docket 25. Because Defendants have also sought dismissal based on preclusion, the Court characterizes the motion under Federal Rule of Civil Procedure 12(b)(6) as well. Plaintiff responds at Docket 34 with Defendants replying at Docket 43. Plaintiff has also moved for oral argument at Docket 44.


Plaintiff gave birth to a baby girl, A.F., two weeks premature, on January 17, 2012.[1] An emergency Caesarean section, or C-section, procedure was used to deliver the baby after it was determined that there was insufficient amniotic fluid to support the baby.[2] A.F. weighed only 4 pounds 10 ounces at birth and tested positive for opiates in her system.[3] Shortly thereafter, the hospital social worker reported the birth and positive drug screen of A.F. to the Office of Children's Services (" OCS" ).[4] Plaintiff argues that the report to OCS was due to an unspecified state law requirement due to Plaintiff's history with OCS.[5]

Plaintiff already had a history with OCS. OCS had taken custody of her older child,

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J.F., in 2009 when the child was 2 years of age.[6] Because of Plaintiff's extensive history of substance abuse and violent domestic relationships, social workers with OCS had previously created a case plan to attempt to reunite Plaintiff with J.F.[7] These efforts were reportedly unsuccessful as proceedings to terminate parental rights to J.F. had commenced at the time of A.F.'s birth. Plaintiff's parental rights and responsibilities as to J.F. were ultimately terminated by the Alaska Superior Court on March 27, 2012.[8]

In response to the report from the hospital, Defendants, under the direction of Dale, assumed emergency custody of A.F. on January 20, 2012, pursuant to Alaska Statute § 47.10.142(a)(3), and filed a petition with the state court alleging A.F. was a " child in need of aid" (" CINA" ).[9] Defendants have asserted that the totality of the circumstance-including Plaintiff and A.F. testing positive for opiates, Plaintiff's untreated substance abuse, violent relationships, and failure to comply with her case plan with J.F. - placed A.F. at substantial risk for abuse and neglect.[10] In accordance with Alaska Statute § 47.10.142(d), a temporary custody hearing was held on January 23, 2012, to evaluate the temporary custody by OCS.[11] The court found that remaining in Plaintiff's custody put A.F. at further risk of harm and A.F. was to remain in the custody of OCS until the hearing on February 2, 2012.[12]

At the February 2, 2012, hearing, Plaintiff challenged the basis and probable cause for removal of A.F. from her custody. During the hearing Defendant Dale testified and was cross-examined by Plaintiff's counsel and the court reviewed the evidence supporting the removal of A.F. from Plaintiff's custody. The court found that there was " probable cause" to believe that A.F. was a CINA and found that continued placement with Plaintiff was contrary to the child's welfare.[13] The court committed A.F. to the temporary custody of OCS pending the adjudication phase of proceedings. The court issued an order of adjudication on April 23, 2012, that, based on a preponderance of evidence, A.F. continued to be a CINA and that it was contrary to the welfare of A.F. to return to Plaintiff's custody.[14] The court held a hearing regarding the parental rights and responsibilities of Plaintiff for A.F. and ultimately granted OCS's petition to terminate parental rights on October 22, 2012.[15]

Plaintiff appealed the court's decision to the Alaska Supreme Court.[16] The Alaska Supreme Court supported all findings and affirmed the state court's order terminating parental rights on April 2, 2014.[17]


A. FRCP 12(b)(1)

A complaint must be dismissed if the court lacks subject ...

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