Rogers v. Cumberland County Department of Social Services

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:20-cv-477-BO

KAHLEIGHIA N. ROGERS, e¢ al., )

)

Plaintiffs, )

V. ) ORDER

)

CUMBERLAND COUNTY )

DEPARTMENT OF SOCIAL SERVICES, )

etal., )

)

Defendants. )

poe)

This matter is before the Court on the Memorandum and Recommendation (““M&R”) of

United States Magistrate Judge Robert B. Jones, Jr. [DE 14]. Plaintiffs have also filed motions to

amend the complaint [DE 7, 17] and motions to appoint counsel [DE 8, 9, 18]. For the following

reasons, the Court adopts the M&R in its entirety, grants the motions to amend the complaint, and

denies the motions to appoint counsel.

BACKGROUND

Plaintiff Sondra Bruton is the mother of plaintiff Kahleighia Rogers, the mother of the

minor plaintiffs. Plaintiffs are all citizens of North Carolina. On March 21, 2018, Rogers gave birth

to K.G. in Cumberland County. K.G. was born prematurely, was admitted to the intensive care

unit, and tested positive for THC. Defendant Tamika Walker, a social worker for the Cumberland

County Department of Social Services (CCDSS), visited Rogers’s home in Harnett County and

informed Rogers’s stepfather that she was there to ensure that K.G. had a proper place to reside

upon his release from the hospital.

On April 6, 2018, Walker told Bruton that CCDSS had filed a petition for non-secure

custody of K.G. and L.R. and K.B., who were other minor children living with Bruton at the time.

Bruton turned the children over to CCDSS four days later. Following a hearing on April 11, 2019,

K.G. was placed into foster care so that a caregiver could be trained to care for a premature baby,

while L.R. and K.B. were returned to Bruton. K.G. remained in foster care for two months, as

K.G.’s father was unable to pass a drug test and refused to take a paternity test. A hearing was held

in July 2018, but Rogers was not present. A consent agreement indicated that Rogers agreed that

the children were neglected, but she now denies that allegation. In October 2018, K.G.’s father

received full legal custody of K.G. On June 12, 2019, a hearing was scheduled to determine

whether L.R. and K.B. would be released from non-secure custody, but the hearing was continue

because defendant Carrie Carter, the guardian ad litem (GAL), made an unscheduled home visit

while no one was at home.

On June 21, 2019, GAL Carter made another unscheduled home visit, this time with

defendant Shakeisha McClain, a CCDSS social worker, and did not receive an answer at the door.

Id. McClain left a message on Bruton’s voicemail threatening to remove the children if she did not

answer. /d. Carter and McClain contacted the Harnett County Sheriffs Office, and a deputy arrived

and banged loudly enough on the door to wake Bruton. Once inside, McClain threatened Bruton.

Id. After McClain left, Bruton called defendant Danielle Farrior, a CCDSS supervisor, and was

accused of being rude to McClain. Farrior told Bruton that she and McClain would return to

Bruton’s home to conduct a safety check that afternoon.

On June 22, 2019, an investigator told Bruton that there was a report that Bruton was

sleeping all day and leaving the children unattended, that there was an unknown male in the home,

and that Bruton did not have a valid driver’s license. On June 23, 2019, Farrior contacted Bruton

regarding the safety check, and Bruton informed her that McClain had made a false report and that

the investigator had already completed the safety check. Farrior stated that the safety check had

not been completed and scheduled it for the following day. No one contacted Bruton on June 24,

and Farrior and McCain attempted to complete the safety check on June 26 instead. Bruton was

not at home, but she offered to send a neighbor to help them complete the safety check. Farrior

refused Bruton’s offer, and instead told Bruton that they would have to remove the children

because she was never at home for the unscheduled visits and because her license was suspended.

Defendant Brandi Briza, the CCDSS Program Manager, and Terri Morton, an attorney, authorized

the removal, and the children were placed in foster care. Bruton spoke with Briza, who told her

she would not be getting the children back; made a formal complaint to the then-section chief of

the CCDSS; spoke with Sandy Connors, an assistant director at CCDSS, who advised Bruton that

removal was not necessary and that she would refer the matter to defendant Brenda Reid Jackson,

director; and left a voicemail for Reid Jackson, who responded with an apology email.

A hearing was held on July 14, 2019, at which Farrior stated that the children had informed

her that Bruton had held them under cold water as a form of punishment and beaten them with a

belt. The court ordered a forensic examination of the children, which revealed no evidence of

abuse. The children were returned after two supervised visits, drug tests of Bruton and Rogers, and

a home study. Although Furrior told Bruton over the phone that the case would be closed at the

next hearing, CCDSS informed the court at an October 19 hearing that they needed to monitor the

new residence Bruton had recently moved to.

In January 2020, an investigator visited Bruton and stated that there were allegations that

she was beating the children with sticky bushes, was transporting them without a license, and had

no source of income. Ata CCDSS meeting in February 2020, defendant Megan Phillips, a CCDSS

social worker, stated that the children had been removed in June 2019 after a forensic report found

that they had been improperly disciplined. There had never been such a report, and the complaint

alleges that Phillips acted with malice to discredit Bruton before the panel of CCDSS supervisors.

Id. CCDSS advised Leon Williams, an investigator, not to close the case and not to attend the next

hearing. After Williams left the CCDSS, the next investigator closed the case two weeks after the

hearing, but the case was continued.

On June 18, 2020, Rogers gave birth to another infant, K.R., who tested positive for THC.

Id. On June 22, 2020, defendant Tenise Lampley, a CCDSS assessor, completed a Temporary

Safety Plan at Bruton’s home and told Bruton that she could pick the infant up from the hospital

if her background check was good. On June 24, 2020, Phillips told Bruton that the infant would

be released from the hospital at 2:30 p.m. and that Bruton should arrive early to receive training

for infants exposed to THC. Lampley told Bruton that Phillips has scheduled an emergency ex

parte hearing. Bruton was suspicious that both events were at the same time, and she attended the

hearing with Rogers. Morton represented CCDSS and Phillips at the hearing, and they requested

that the court order non-secure custody and place K.R. in foster care. Bruton informed the court of

what she believed to be two years of retaliation and harassment by CCDSS. The court placed the

child in foster case because Phillips stated that she was concerned that Rogers would attempt to

remove K.R. from Bruton’s care, and defendant Mariamarta Conrad, GAL Attorney Advocate,

agreed with the decision.

Following this hearing, Bruton began a social media campaign to expose CCDSS’s

allegedly unlawful removal of children, and she included photos of CCDSS employees taken from

their Facebook pages. Phillips advised the court at a June 29, 2020 hearing that Bruton had violated

child protection laws and shared confidential information, and GAL Conrad agreed. The court kept

the infant in foster care and banned Bruton from having contact with the child. At the hearing,

Phillips also stated that she would be seeking to remove the two older children at the next hearing

because they were not attending play therapy services and because of a conflict between Bruton

and Rogers. On July 13, 2020, Phillips told Bruton that she would be taking the children to a play

therapy session, but Bruton told Phillips that Valarie Johnson of the North Carolina Department

of Health and Human Services had advised that the children not attend any non-emergency

appointments due to COVID-91. However, Phillips attempted to transport the children to therapy

in an alleged effort to unlawfully remove them and place them in foster care.

On July 16, 2020, CCDSS and its employees involved the police in a search of Bruton’s

home. They attempted to force entry and threatened to imprison Bruton if she did not turn over the

children, but Bruton stated that she would not turn over the children without an order. Defendant

Michael Simmons, a CCDSS attorney, deceived Rogers’s attorney by stating that he did have an

order for removal. Bruton subsequently turned the minors in to Phillips at the Cumberland County

Courthouse, and Phillips and Simmons requested that Bruton be barred from all contact with the

children. The complaint further alleges that defendant Virgie DeVane-Hayes, a supervisor with

CCDSS, stated in a recorded conversation that one of the infants was deemed neglected because

she tested positive for THC, but argues that this result is contrary to law. Additionally, the infant

has been in foster care due to CCDSS continuances, although the law requires that evidence of

abuse, neglect, or dependency must be shown within sixty days, unless that time is extended for

good cause. The complaint alleges that no hearing has been held because CCDSS does not have

evidence.

Plaintiffs allege the following claims: (1) violation of their rights to equal protection against

all defendants; (2) violation of their rights to due process against all defendants; (3) a Fourth

Amendment violation against all defendants; (4) negligence against attorneys Terri Morton, James

Dill, and Michael Simmons and all CCDSS employees and agents; (5) gross negligence against all

defendants; (6) negligent supervision against the CCDSS director, Cumberland County, the

attorneys, and all CCDSS supervisors; (7) gross negligent supervision against Cumberland

County, Reid Jackson, all CCDSS attorneys, and GAL Conrad; (8) negligent misrepresentation

against Reid Jackson and all CCDSS attorneys, supervisors, and social workers; (9) harassment

and retaliation against all defendants; (10) negligent hiring and retention against Cumberland

County; (11) gross negligent retention and hiring against Cumberland County; (12) fraud and fraud

upon the court against all defendants; (13) breach of contract by Rogers against defendant Antoine

Edwards, an attorney; (14) breach of contract by the minor plaintiffs against GAL Carter and GAL

Attorney Advocate Conrad; and (15) constructive fraud against all defendants. Plaintiffs further

allege that Cumberland County is liable for the actions of CCDSS and its employees under the

theory of respondeat superior, and they seek punitive damages and attorney’s fees. Plaintiffs

request that the children be released from Cumberland County non-secure custody immediately

and allege damages in excess of $20,000,000.

On November 23, 2020, Magistrate Judge Jones filed an M&R allowing the applications

to proceed in forma pauperis but recommending that some claims be dismissed. [DE 14].

Specifically, the M&R recommended that all claims against CCDSS and the harassment and

retaliation claims be dismissed with prejudice. It also recommended that the following claims be

dismissed without prejudice: the equal protection claim, Bruton’s due process claim, Rogers’s

Fourth Amendment claim, all state law claims asserted against Cumberland County and its

employees in their official capacities, the negligence and negligent misrepresentation claims, the

negligent supervision claim and the claims for negligent hiring and retention, the claim for fraud

upon the court, the minor plaintiffs’ breach of contract claims, the fraud claim except against

Simmons, and the constructive fraud claims. It recommended that the remaining claims be allowed

to proceed. Plaintiffs timely filed an objection to the M&R. [DE 16]. Plaintiffs objected to the

dismissal of the state law claims against Cumberland County and its employees, the equal

protection claim, the fraud and constructive fraud claims, and the minor plaintiffs’ breach of

contract/malpractice claim, and the negligence and negligent misrepresentation claims, but

accepted all other stated recommendations.

DISCUSSION

Motions to Appoint Counsel

Plaintiffs have filed three motions to appoint counsel. There is no constitutional right to

counsel in civil cases, and courts should exercise their discretion to appoint counsel for pro se civil

litigants “only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975) (citation

omitted). The existence of exceptional circumstances justifying appointment of counsel depends

upon “the type and complexity of the case, and the abilities of the individuals bringing it.”

Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) abrogated on other grounds by Mallard v.

U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989). Considering these factors, the Court

finds that this case is not one in which exceptional circumstances merit appointment of counsel.

Therefore, plaintiffs’ motions to appoint counsel are denied.

First Motion to Amend Complaint

Plaintiffs filed their first motion to amend the complaint prior to Judge Jones’s M&R. Rule

15 of the Federal Rules of Civil Procedure provides that a party may amend his pleadings as a

matter of right under certain circumstances or with the opposing party’s consent or with leave of

the court. Fed. R. Civ. P. 15(a)(1)-(2). /d. at 15(2). Further, Rule 15 directs that leave to amend be

freely given when justice requires. “This liberal rule gives effect to the federal policy in favor of

resolving cases on their merits instead of disposing of them on technicalities.” Laber v. Harvey,

438 F.3d 404, 426 (4th Cir. 2006) (citations omitted). A court should only deny leave to amend a

pleading when the amendment would be prejudicial to the opposing party, where there has been

bad faith on the part of the moving party, or when the amendment would be futile. Johnson v.

Oroweat Food Co., 785 F.2d 503, 509 (4th Cir. 1986) (citing Foman v. Davis, 371 U.S. 178, 182

(1962)). For good cause shown, plaintiffs’ first motion to amend the complaint is granted, and the

Court uses the First Amended Complaint in considering the M&R, as Judge Jones did.

Memorandum and Recommendation

A district court is required to review an M&R de novo if the plaintiff specifically objects

to it or in cases of clear error. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149-50 (1985).

The district court is only required to make a de novo determination of those specific findings to

which the plaintiff has actually objected. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).

Here, plaintiffs have objected to several of the recommendations made by Judge Jones.

Specifically, plaintiffs object to the dismissal of the claims against Cumberland County and its

employees, the equal protection claim, the fraud and constructive fraud claims, the minor

plaintiffs’ breach of contract/malpractice claim, and the negligence and misrepresentation claims.

Objections to Dismissal of All State Law Claims Alleged Against Cumberland County and Its

Employees, to Dismiss the Equal Protection Claim, and to Dismiss Claims for Negligence and

Negligent Misrepresentation

Judge Jones recommended in the M&R that all of the state law claims asserted against

Cumberland County and its employees in their official capacities be dismissed because there is no

allegation that Cumberland County has waived its governmental immunity; that the equal

protection claim be dismissed for failure to allege how plaintiffs were treated differently; and that

the negligence and negligent misrepresentation claims be dismissed because the allegations appear

to be based on intentional conduct and defendants have public official immunity for non-malicious

conduct. In their objections, plaintiffs state that they have amended their complaint to correct these

problems. However, these are not proper objections. Instead, plaintiffs are agreeing with the

recommendations stated in the M&R while stating that the conclusions would be different if

plaintiffs could amend the complaint. Therefore, this Court adopts the recommendations of the

M&R to dismiss all state law claims alleged against Cumberland County and its employees in their

official capacities, the equal protection claim, and the negligence and negligent misrepresentation

claims, but it considers plaintiff's second motion to amend below.

Objection to the Claim for Fraud and Constructive Fraud Against All Defendants

Judge Jones recommends that the fraud claims be dismissed, except for the claim for

Simmons’ allegedly deceitful statement that there was a court order for the removal of the children,

because plaintiffs failed to show that any other false misrepresentations of fact actually deceived

plaintiffs. In their objections, plaintiffs argue that they did not learn about applicable child welfare

laws until after June 26, 2019, when the children were removed from Bruton’s home. DE 16, p. 3.

In other words, plaintiffs object to Judge Jones finding that plaintiffs were not actually deceived

by NCDHHS’s representation that they could remove the children whenever they wanted and that

a court would ultimately decide the issue of custody.

In order to state a claim for fraud under North Carolina law, a plaintiff must plead with

particularity facts showing (1) a false representation or concealment of a material fact, (2)

reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive,

(5) resulting in damage to the injured party. Forbis v. Neal, 361 N.C. 519, 526-27 (2007) (citation

omitted). Here, the Court finds that plaintiffs were not actually deceived by NCDHSS’s statement.

Immediately following the removal of the minor plaintiffs from Bruton’s home, Bruton spoke with

Briza, made a formal complaint to the then-section chief of the CCDSS, spoke with Connors, and

left a voicemail for Reid Jackson. If plaintiffs had actually been deceived by the alleged

misrepresentation, they would not have proceeded to immediately contact and complain to four

different individuals. The facts in this case indicate that plaintiffs did not rely on this alleged

misrepresentation, and this fraud claim fails.

In the M&R, Judge Jones recommends that the claims of constructive fraud be dismissed

as to the CCDSS defendants because there is no fiduciary relationship between DSS employees

and families, see Hogan v. Cherokee Cty., No. 1:18-CV-96, 2019 U.S. Dist. LEXIS 52682, at *20-—

21 (W.D.N.C. Feb. 27, 2019) (finding that Department of Social Services employees do not have

a confidential or fiduciary relationship with families under investigation, and as to the GALs, based

on the facts alleged, it is unclear how the conduct of the GALs may have taken advantage of the

position of trust with the children. In their objections, plaintiffs merely reiterate their allegations

in favor of the constructive fraud claims, but do not object to any of the legal or factual findings

of Judge Jones. Therefore, the claim of constructive fraud is dismissed.

Objection to Recommendation to Dismiss the Claim of Breach of Contract/Malpractice Against

GAL Carter and GAL Advocate Conrad

Plaintiffs allege that GAL Carter and GAL Attorney Advocate Conrad had a duty to

investigate whether the allegations of the petition were true or false and that they breached that

duty by supporting the unlawful removal of the children. Second Am. Compl. p. 48. “The elements

of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of

[the] contract.” Wells Fargo Ins. Servs. USA, Inc. v. Link, 372 N.C. 261, 276 (2018) (citations

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omitted). GALs are appointed by the court to represent juveniles when a juvenile is alleged to be

abused or neglected, and when a non-attorney is appointed as the GAL, an attorney is also

appointed “to assure protection of the juvenile’s legal rights throughout the proceeding.” N.C. Gen.

Stat. § 7B-601.

The complaint does not allege the existence of a contract between the minor plaintiffs and

Conrad or Carter. In their objections, plaintiffs argue that there was ‘“‘an implied relationship of

trust” between the GALs and the minor plaintiffs, but they admit that there was no contract. DE

16, p. 9. However, this implied relationship of trust does not create a contract, and therefore cannot

support a claim for breach of contract. Therefore, this breach of contract claim is dismissed for

failure to state a claim.

Finding no other specific objections to the findings of the M&R, the Court considers

whether the M&R is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). The Court

finds no clear error in the remainder of Judge Jones’s M&R, and therefore adopts Judge Jones’s

recommendations to dismiss with prejudice all claims against CCDSS and the harassment and

retaliation claims and to dismiss the following claims without prejudice: the equal protection

claim; Bruton’s due process claim; Rogers’s Fourth Amendment claim; all state law claims against

Cumberland County and its employees in their official capacities; the negligence and negligent

misrepresentation claims; the negligent hiring, retention, and supervision claims; the claim for

fraud upon the court; the minor plaintiffs’ breach of contract claims; the constructive fraud claim,

and all fraud claims, except as to Simmons’s allegedly deceitful statement that there was a court

order for the removal of the children.

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Second Motion to Amend

For good cause shown, the second motion to amend the complaint is granted. In the

amended complaint, plaintiffs make several additions or amendments. Specifically, they have

added to their gross negligence claim, they have added a statement of waiver of immunity for

Cumberland County, they have added a statement that all individual defendants acted in both their

individual and official capacities, they have amended and added to their claim for negligent hiring

and retention, and they have changed the minor plaintiffs’ breach of contract claim against

defendants GAL Carter and Attorney Advocate Conrad to a legal malpractice claim involving the

same patties.

A timely-filed amended pleading supersedes the original pleading. Young v. City of Mount

Ranier, 238 F.3d 567, 573 (4th Cir. 2001) (“The general rule . . . is that an amended pleading

supersedes the original pleading, rendering the original pleading of no effect.”). The Court is

charged with liberally construing a pleading filed by pro se litigants to allow for the development

of a potentially meritorious claim. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.

Kerner, 404 U.S. 519, 520 (1972); Noble v. Barnett, 24 F.3d 582, 587, n.6 (4th Cir. 1994) (citations

omitted). Plaintiffs proceeding in forma pauperis, however, must “meet certain minimum

standards of rationality and specificity.” Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994). Therefore,

since plaintiffs are proceeding in forma pauperis, the court conducts a frivolity review of the case

pursuant to 28 U.S.C. § 1915(e)(2)(B) to the extent that the Second Amended Complaint differs

from the First Amended Complaint. In such a review, the Court must determine whether the action

is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary

relief from an immune defendant, and is therefore subject to dismissal. 28 U.S.C. § 1915(e)(2)(B).

A complaint is frivolous if “it lacks an arguable basis in either law or fact.” See Nietzke v. Williams,

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490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2099) (“Examples

of frivolous claims include those whose factual allegations are ‘so nutty,’ ‘delusional,’ or ‘wholly

fanciful’ as to be simply ‘unbelievable.’’’) (citations omitted). A court may dismiss all or part of

any complaint which fails to state a claim upon which relief can be granted or which seeks money

damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B).

Cumberland County’s Immunity

Plaintiffs assert multiple state law claims against Cumberland County. Under the doctrine

of governmental immunity, counties and their agencies are immune from state law claims absent

a waiver of immunity. Oliver v. Harper, No. 5:09-CT-3027-H, 2011 U.S. Dist. LEXIS 29499, at

*23 (E.D.N.C. Mar. 22, 2011) (citations omitted). “Services provided by local Departments of

Social Services are governmental functions to which governmental immunity applies.” Hogan

2019 U.S. Dist. LEXIS 52682, at *11 (W.D.N.C. Feb. 28, 2019) (citing Whitaker v. Clark, 427

S.E.2d 142, 153 (N.C. Ct. App. 1993)); see also Kline v. Cleveland County, 1:19-CV-00197-MOC-

WCM, 2020 U.S. Dist. LEXIS 60924, at *40 (W.D.N.C. Apr. 7, 2020) (“Because child abuse

investigations are governmental in nature, counties are normally ‘immune from liability for

injuries caused by negligent social services employees working in the course of their duties.’”’)

(quoting Hare v. Butler, 99 N.C. App. 693 (1990)).

“In order to overcome a defense of governmental immunity, the complaint must

specifically allege a waiver of governmental immunity. Absent such an allegation, the complaint

fails to state a cause of action.” Shupe v. Baur, No. 7:14-CV-56-F, 2015 U.S. Dist. LEXIS 61423,

at *18 (E.D.N.C. May 11, 2015) (citing Clark v. Burke County, 117 N.C. App. 85, 77 (1994)). “A

county may waive governmental immunity by purchasing insurance, but any waiver is limited to

the extent of the insurance coverage.” Perry v. Pamlico Cnty., 88 F. Supp. 3d 518, 532 (E.D.N.C.

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2015); see also N.C. Gen. Stat. § 153A-435(a) (providing that a county waives its “governmental

immunity, to the extent of insurance coverage, for any act or omission occurring in the exercise of

a governmental function.”). “If ‘the insurance policy does not indemnify [the] defendant against

the negligent acts alleged in plaintiff's complaint, defendant has not waived its sovereign

immunity.’” Perry, 88 F. Supp. at 532 (quoting Doe v. Jenkins, 144.N.C. App. 131, 135 (2001)).

Judge Jones recommended in his M&R that all tort claims against Cumberland County and

its employees in their official capacities be dismissed without prejudice because there was no

allegation in the complaint that Cumberland County was waived its immunity by purchasing

insurance. However, in the amended complaint, as noted in plaintiffs’ objections, plaintiffs allege

that Cumberland County has purchased insurance and thereby waived immunity. In adopting the

M&R, this Court dismissed the negligent hiring, retention, and supervision claim solely based on

immunity. However, plaintiffs do not provide any information about the insurance Cumberland

County has purchased, and they do not show that this insurance coverage extended to negligence

claims or claims of negligent, hiring, retention, and supervision specifically. Furthermore, the

allegation of Cumberland County’s insurance is a legal conclusion without any supporting factual

details.

The M&R stated that defendants enjoy public official immunity as to any claims against

defendants in their individual capacities to the extent that they acted without malice or corruption.

Plaintiffs add in their Second Amended Complaint that “each Claim for Relief against each

Defendant is brought against that Defendant in both his/her individual and official capacities.”

Second Am. Compl. p. 38. The Court notes that, while this amendment clarifies plaintiffs’ claims,

it does not change alter the results of the M&R, since Judge Jones considered the claims against

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defendants in their individual capacities and, as Judge Jones notes, the claims against defendants

in their official capacities merge into the claims against Cumberland County.

Legal Malpractice: All Minor Plaintiffs Against GAL Carter and GAL Attorney Advocate Conrad

In the Second Amended Complaint, plaintiffs allege that GAL Carter and GAL Attorney

Advocate Conrad violated their ethical duties and legal obligations through plaintiff in “failing to

act in the best interest of each child, failing to investigate and report allegation of the petition to

the court or other appropriate authorities, and failing to perform their sworn duties to protect the

rights” of minor plaintiffs. Second Am. Compl. pp. 46-48. “To state a claim for legal malpractice

under North Carolina law, a plaintiff must allege facts showing ‘that the attorney breached the

duties owed to his client . . . and that this negligence (2) proximately caused (3) damage to the

plaintiff.” Southwood v. Credit Card Sol., No 7:09-CV-81-F, 2012 U.S. Dist. LEXIS 152146, at

*27 (E.D.N.C. Oct. 23, 2012) (quoting Rorrer v. Cooke, 313 N.C. 338, 355 (1985). “Proof of an

attorney-client relationship is essential to establishing a claim for legal malpractice.” Umphreyville

v. Gittins, 662 F. Supp. 2d 501, 510 (W.D. Va. 2009).

Here, minor plaintiffs are unable to sustain a claim of legal malpractice against Conrad and

Carter. As a matter of law, there is no basis for finding an attorney-client relationship between a

GAL and a ward. McClintock v. West, 219 Cal. App. 4th 540, 555 (Cal. App. 4th 2013); see also

Wolfe v. Grey, C.A. No. 963, 1979 Ohio App. LEXIS 12488, at *3 (Ohio App. 4th 1979) (‘There

is no requirement that a guardian ad litem be an attorney, and we are not prepared to hold that the

mere appointment of an attorney as guardian ad litem thereby obligates such person to function as

the ward’s attorney with that office’s attendant powers and duties.”). The GAL’s duty is to act in

the ward’s best interests, but the GAL ultimately answers to the court and acts as an officer and

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representative of the court. McClintock, 219 Cal. App. 4th at 555. Therefore, minor plaintiffs may

not bring a claim of legal malpractice against Conrad and Carter.

Summary

In conclusion, for the reasons discussed above, all claims against CCDSS and the

harassment and retaliation claims are dismissed with prejudice. The following claims are dismissed

without prejudice:

e The equal protection claims against all defendants;

e Bruton’s due process claims against all defendants;

e Rogers’s Fourth Amendment claims against all defendants;

e The negligence claims against Morton, Dill, Simmons, and all CCDSS employees;

e The gross negligence claims against all defendants;

e The negligent supervision claims against CCDSS director, Cumberland County, CCDSS

attorneys, and CCDSS supervisors;

e The gross negligent supervision claims against Cumberland County, Reid Jackson, CCDSS

attorneys, and GAL Conrad;

e The negligent misrepresentation claims against Reid Jackson and CCDSS attorneys, social

workers, and supervisors;

e The negligent hiring and retention and gross negligent hiring and retention claims against

Cumberland County;

e The minor plaintiffs’ breach of contract claims against Conrad and Carter;

e The minor plaintiffs’ legal malpractice claims against Conrad and Carter;

e The fraud claims against all defendants except Simmons;

e The fraud upon the court claims against all defendants;

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e Allstate law claims asserted against Cumberland County and its employees in their official

capacities;

e And the constructive fraud claims against all defendants.

The following claims are allowed to proceed:

e Rogers’s and the minor plaintiffs’ substantive due process claim;

e Rogers’s procedural due process claim relating to the July 2018 claim;

e Rogers’s procedural due process claim relating to the July 2018 hearing;

e Bruton’s Fourth Amendment claim for the search of her home;

e The minor plaintiffs’ Fourth Amendment claim for the seizure of their persons;

e Bruton’s fraud claim for Simmons’s allegedly deceitful statement that there was a court

order for the removal of the children; and

e Rogers’s legal malpractice claim against Edwards.

CONCLUSION

For the foregoing reasons, the Court DENIES plaintiffs’ motions to appoint counsel [DE

8, 9, 18], GRANTS the motions to amend complaint [DE 7, 17], and ADOPTS the Magistrate

Judge’s recommendations [DE 14]. The Clerk is DIRECTED to file the first proposed amended

complaint [DE 7-1] as the First Amended Complaint and to file the second proposed amended

complaint [DE 17-1] as the Second Amended Complaint. The Clerk is also DIRECTED to issue

summons and provide the Second Amended Complaint and this order to the U.S. Marshals’ Office.

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SO ORDERED, this q day of March, 2021.

AKA W. BOYLE j

UNITED STATES DISTRICT JUDGE

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