# Opposition Brief — Stem v. Ahearn

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1069

## Text

‘ Supreme Court, U.S.

90-1018 |) FILED
| DEC B me

JOSEPH F. SPANIOL, UR.
CLERK

NO.

IN THE
SUPREME COURT OF THE UNITED STATES

NOVEMBER TERM, 1990

STEPHEN C. STEM,
Petitioner,

V.

RALPH AHEARN AND CHRIS CARD,
Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT
OF CERTIORARI

JIM MATTOX
Attorney General of Texas

MARY F. KELLER
First Assistant Attorney General

LOU McCREARY PATRICK J. FEENEY

Executive Assistant Asst. Attorney General

Attorney General Counsel for Respondents
P.O. Box 12548

DELMAR CAIN Capitol Station

Chief, Tort Litigation Austin, Texas 78711-2548

Division (512) 463-2197, Ext. 207

(512) 463-2224 (Fax)

al)

EDITOR'S NOTE:

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.

%

NO..-

IN THE
SUPREME COURT OF THE UNITED STATES

NOVEMBER TERM, 1990

STEPHEN C. STEM,
Petitioner,
V.
RALPH AHEARN AND CHRIS CARD,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT
OF CERTIORARI

QUESTIONS PRESENTED

Respondents do not concur with the Petitioner’s
atement of the Questions Presented. Respondents would
ate that the following constitutes an accurate presentation
the Questions Presented by the Petitioner in this
oceeding:

1. Whether the Eleventh Amendment bars Peti-
tioner’s claim for money damages against two

employees of the Texas Department of
Human Services for actions taken in their
official capacities.

Whether two employees of the Texas Depart-
ment of Human Services are entitled to
qualified immunity in a suit against them in
their individual capacities under 42 U.S.C.A.
section 1983.

TABLE OF CONTENTS

PAGE
I rae i
OE a eee eT eee iv
Er a ee ee eee 1
Summary GF the Argument ... ww. ccc cee 2
Reasons for Denying the Petition .............. 3
Ee ere 10

-iv-

INDEX OF AUTHORITIES

Brinkmann v. Johnston, 793 F.2d 111

I Ci ss bea oes eee ewes

Clark v. Tarrant County, 709 F.2d 736,

744 (Sth Cir. 1986) ....--.- ee eee eee eeee

District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462, 103 S.Ct.

1303, 75 L.Ed.2d 206 (1983) ......-.--0-.

Elliott v. Perez, 724 F.2d 1472

~—— 2 eee

Ex Parte Young, 209 U.S. 123, 28 S.Ct.

441, 52 L.Ed.2d 714 (1908) ......---+-+e-

Gomez v. Toledo, 446 U.S. 620,

eee rrr

Hale v. Harney, 786 F.2d 688

a

Harlow v. Fitzgerald, 457 U.S. 800,

I iad sense ccees

Hodorowski v. Ray, 844 F.2d 1210

eka i ce yes sss es

Kremer v. Chemical Construction Corp.,
456 US. 461, 102 S.Ct. 1883,

72 L.Ed.2d 262 (1982) .....-----eeeeees

PAGE

Levitt v. University of Texas at El Paso,

759 F.2d 1224 (Sth Cir. 1985) ...........

Migra v. Warren City School District
Board of Education, 465 U.S. 75, 104 S.Ct.

892, 79 L.Ed.2d 56 (1984) .............

Moore v. Sims, 442 U.S. 415, 99 S.Ct.

2371, 60 L.Ed.2d 994 (1979) ............

Ramirez v. Ahn, 843 F.2d 864

I GSS

Reed v. Terrell, 759 F.2d 472

Rn

Rooker v. Fidelity Trust Co., 263 U.S. 413,

OG MII «oon svc cncacccass..

Russell v. Texas Dep’t of Human Resources,
746 S.W.2d 510 (Tex. App. - Texarkana

I se ak ec 4 sos oe

Smith v. Edmiston, 431 F.Supp. 941

a

Stem v. Ahearn, 908 F.2d 1

i ,

Stern v. United States Gypsum, Inc.,
547 F.2d 1329 (7th Cir. 1977) ........

Tex. Fam. Code Ann., section 14.01

“\mapem tee. . snag) TERE ee

PAGE
Tex. Fam. Code Ann., section 14.03
(Vernon Supp. 1991) .... cere e ccc cesecccens 5
Tex. Fam. Code Ann., section 34.05
(Vermom Sapp. 19P1) 2. nc ccc cree cc ccccenees 3
Tex. Fam. Code Ann., section 34.052
(Vernon Supp. 1991)... wc ccc cece crc v eevee. 3
Tex. Fam. Code Ann., section 34.053
(Vernon Supp. 1991) .....ccccrccccvcvvecves 3
Tex. Hum. Res. Code Ann., section 21.004
ee 3
Tex. Hum. Res. Code Ann., section 21.005
te UP ee ee ee ee 3
Rule 14(5), Rules of the Supreme Court
Bg ee ae ee ee ee 2
Se ee 6
eee BD nc ace cnt bee ieee nes 1,4,7
a Ck as be ebb eeea ee’ 1
See, Ge, PO, Be I ln ew ccc erecens ce
ee er i ce eee ches wees s 1
Ee a 1
U.S. Const., Eleventh Amend. ..............-.. 2,5

-vii-

U.S. Const., Fourteenth Amend..

Anti-Injunction Act. 28 U.S.C.
section 2283

7
STATEMENT OF THE CASE

Petitioner filed suit in the United States District Court
for the Southern District of Texas against Respondents,
Ralph Ahearn (hereinafter "Ahearn") and Chris Card
(hereinafter "Card”). The complaint alleged that
Respondents violated 42 U.S.C.A. section 1983, 42 U.S.C.A,
section 1985, and the Fifth, Sixth and Fourteenth Amend-
ments to the United States Constitution. The only relief
sought by the Petitioner from Respondents was monetary
damages. A true and correct copy of the Petitioner’s
complaint in the district court is attached as Appendix A to
this Brief.

Respondents moved for summary judgment in their
favor. Respondents asserted that they were entitled to
Eleventh Amendment immunity in their official capacities
and to qualified immunity in their individual capacities. A
copy of the Respondents’ motion is attached as Appendix B
to this Brief.

The district court held that Ahearn and Card are
employees of the Texas Department of Human Services, a
state agency, but that Ahearn and Card in their official
capacities were not entitled to Eleventh Amendment
immunity. The district court further denied qualified
immunity to the Respondents in their individual capacities.
A copy of the complete order of the court is attached as
Appendix C to this Brief./

‘Respondent would point out that the Petitioner has attached as
part of his Appendix B an edited version of this order. He has aot
informed the Court that he has deleted a portion of the court's ruling
in attaching Appendix B to his Petition. That portion is significant
because it reflects the district courys determination that Harris County
Children’s Protective Services is a part of the Texas Department of
Human Services.

‘=

The Court of Appeals for the Fifth Circuit reversed the
determination of the trial court. It ruled that the
Respondents were entitled to Eleventh Amendment
immunity in their official capacities and to qualified
immunity in their individual capacities. It is from this ruling
that the Petitioner seeks review. A copy of the Court of
Appeals opinion is attached to the Petitioner’s petition as
Appendix A.

SUMMARY OF THE ARGUMENT

The Court should deny the Petitioner’s Petition because
it is unmeritorious and because Petitioner has failed to
present its Petition with accuracy in violation of Rule 14(5).

Under the facts of this case the Respondents are
entitled under the Eleventh Amendment to immunity as
State officials from whom a monetary recovery is sought. In
addition, the relief Petitioner seeks is barred because:

1) Stem cannot ask for new relief for the first time on

appeal;

2) The Rooker-Feldman doctrine bars such relief;

3) The Anti-Injunction Act bars such relief; and,

4) Declaratory and injunctive relief are barred by claim

preclusion.

In the second instance, Petitioner has failed to
demonstrate any basis for reversing the Court of Appeals’
determination that Ahearn and Card are entitled to qualified
immunity. Contrary to Petitioner’s claim in its Petition,
Petitioner did not sue for injunctive relief in his Complaint;
he sued solely for monetary relief. Similarly, Stem’s analysis
of the law is unsupportable and fraught with inaccuracies.
In general, no authority is cited for the propositions of law
upon which Petitioner relies. Such authority as is presented

~

is generally misrepresentative of the law. In no instance in
the Courts below has Petitioner met the burdens imposed by
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982) and
Elliott v. Perez, 724 F.2d 1472 (Sth Cir. 1985).

REASONS FOR DENYING THE PETITION

I.

Petitioner’s Application is based on the contention that
Ahearn and Card lack Eleventh Amendment immunity when
sued in their official capacities because they supposedly do
not work for the State of Texas. Stem alleges that Ahearn
and Card work for Harris County Children’s Protective
Services (HCCPS) which, he claims, is not entitled to Elev-
enth Amendment protection. This argument fails both on
the facts and the law and was not accepted by the Courts
below.

Respondents are regarded as State employees under
state law. See, e.g., Russell v. Texas Dep’t of Human
Resources, 746 S.W.2d 510, 513-14, (Tex. App. - Texarkana
1988, writ denied). They derive their authority from State
statutory law. See, Tex. Fam. Code Ann. sections 34.05,
34.052, and 34.053 (Vernon Supp. 1991). They are gov-
erned by the Commissioner of the Department of Human
Services, the chief administrative officer of the agency. See,
e.g. Tex. Hum. Res. Code Ann., sections 21.004, 21.005 (Ver-
non 1990). They were hired and trained by the State and
remain subject to State regulations. Significantly, any
judgment rendered against them would necessarily be
satisfied from State funds. Stem v. Ahearn, 908 F.2d 1 (Sth
Cir. 1990). From this review it is obvious that the the Court
of Appeals correctly concluded on the facts that Re-
spondents were state, not county, employees. For this
reason they are entitled to the same Eleventh Amendment
immunity as the State.

a

There do remain additional reasons not addressed by the
Court of Appeals for which this Petition should be denied.
Procedurally, Petitioner’s allegation that Ahearn and Card
lack Eleventh Amendment immunity is not properly
presented on appeal. The summary judgment evidence
established that Ahearn and Card worked for the Texas
Department of Human Services (TDHS) which operates
Harris County Children’s Protective Services (HCCPS). The
district court ordered the case restyled to reflect this
determination. See Appendix C. However, the court
erroneously decided that the Eleventh Amendment did not
protect these employees in their vificial capacity from a
federal suit under 42 U.S.C. section 1983. (App. p. 117, 1.
14-18; p. 118, I. 1-10; p. 120, 1. 5-9.)

Petitioner apparently agrees with Appellants’
interpretation of the Eleventh Amendment, because he does
not seriously contend that this suit would be permissible if,
in fact, the Respondents are State employees. Instead, he
maintains that Appellants are employed by Harris County
and therefore lack Eleventh Amendment protection. This is
his principle basis for disputing the applicability of the
Eleventh Amendment. (Petitioner’s Brief at p. 11.)
Petitioner, however, ignores the district court’s finding that
HCCPS and TDHS are the same entity. No party has taken
issue with or appealed that finding. The district court’s
finding is final and controlling. As part of TDHS, HCCPS
and its employees are entitled to Eleventh Amendment
immunity.

This is not changed by the fact that Harris County
contributes to the support of HCCPS. The Fifth Circuit has
held that Eleventh Amendment immunity applies to State
employees who work with the support of counties. In Clark
v. Tarrant County, 709 F.2d 736, 744 (Sth Cir. 1986), the
provision of the physical facilities for adult probation officers
by the County was held not to alter the probation officers’

=

Status as State employees for Eleventh Amendment
purposes.

Stem further alleges that he pled for injunctive relief and
that the Eleventh Amendment does not apply under the Ex
Parte Young fiction. The Ex Parte Young fiction states that
when a State official is sued in his own name for injunctive
or declaratory relief, suit is not precluded by the Eleventh
Amendment. Ex Parte Young, 209 U.S. 123, 159-160, 28
S.Ct. 441, 454, 52 L.Ed.2d 714 (1908). Federal law bars this
contention for four reasons.

First, a careful reading of the complaint shows that
Petitioner’s claim is false. Petitioner never requested any
kind of injunctive or declaratory relief, general or otherwise.
See Appendix A. Indeed, Stem never cites the location in
his complaint at which he pled for such relief. Even in this
proceeding Petitioner has failed to define either the rights he
supposedly wants declared or the conduct he wants to have
enjoined. Stem cannot ask for new relief for the first time
on appeal. Any claim for relief not presented to the district
court was waived. Stem v. United States Gypsum, Inc., 547
F.2d 1329, 1333 (7th Cir. 1977).

Second, Stem alleged that he was harmed when a State
district court appointed him possessory conservator of his
children rather than joint managing conservator. Any
injunctive or declaratory relief requested by Stem must
necessarily relate to this order.” Any declaratory or
injunctive relief to which Petitioner could conceivably be
entitled would be moot without a retrial of the custody stage
of the State district court case. In sum, any declaratory or

2In Texas practice a custodial parent is referred to as the managing
conservator. The trial court may appoint a parent as the sole managing
conservator or it may appoint both parents joint managing conserva-
tors. Tex. Fam. Code Ann., section 14.01 (Vernon Supp. 1991). A
non-custodial parent is typically appointed as the possessory conservator.
Id., section 14.03.

a

injunctive relief would necessarily be a collateral attack in
federal court on a State court judgment. Such actions are
barred by the Rooker-Feldman doctrine. Rooker v. Fidelity
Trust Co., 263 U.S. 413, 44 S.Ct. 149 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103
S.Ct. 1303, 75 L.Ed.2d 206 (1983). The Fifth Circuit has
properly applied the Rooker- Feldman doctrine to challenges
to State court child custody proceedings several times. Hale
v. Hamey, 786 F.2d 688 (Sth Cir. 1986); Reed v. Terrell, 759
F.2d 472 (Sth Cir. 1985); Brinkmann v. Johnston, 793 F.2d
111 (Sth Cir. 1986).

Third, Stem never stated any lawful basis for injunctive
relief. Such relief would be barred by the Anti-Injunction
Act. 28 U.S.C. section 2283. The Act states:

"A Court of the United States may not grant an
injunction to stay the proceedings in a State court
except as expressly authorized by Act of Cczigress,
or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments."

Petitioner alleged that he was injured by being awarded
possessory conservatorship rather than managing
conservatorship over his children. As implied above, to
avoid asking for a moot remedy any declaratory or injunctive
relief must effectively vacate the orders of the State district
court in the divorce case. The Anti-Injunction Act prohibits
this remedy, unless one of the exceptions apply. Stem has
never alleged anything that constitutes an exception to these
provisions. Hence, Stem’s claim for injunctive relief is
barred.

Finally, because any ciaim for injunctive relief would
merely lead to relitigation of the State district court’s
custody determination, relief is barred by claim preclusion.
Under U.S. Const. Art. IV, section 1 and 28 U.S.C. section
1738, federal courts must give state court judgments the

=

same preclusive effect that a court in that state would give
it, even in section 1983 actions. Migra v. Warren City School
District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79
L.Ed.2d 56 (1984); Kremer v. Chemical Construction Corp.,
456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).

II.

Petitioner lays claim to numerous supposed violations of
his constitutional rights, none of which are sufficient to
deny qualified immunity to Respondents. Petitioner’s overall
approach is one that substitutes creative writing for legal
analysis; it thereby fails to raise any substantive issues. A
typical example of the rights which Stem alleges were
violated include the rights to notice and to confront
witnesses. These are actually the rights of criminal
defendants.

Stem never cites any law supporting this novel theory.
(Respondents, however, will cite authority for the
proposition that the Constitutional rights of criminal
defendants are inapplicable in civil cases. Smith v. Edmiston,
431 F.Supp. 941, 945 (W.D. Tenn. 1977). Stem’s theory
clearly has no established analytical foundation. Because of
this, Stem has noi stated a violation of clearly established
law under Harlow v. Fitzgerald, supra.

This same sort of analysis can be extended to the
remainder of Stem’s analysis of qualified immunity. For
example, Stem claimed his rights were violated when ‘i exas
Department of Human Services’ employees allegedly violated
Harris County Children’s Protective Services guidelines,
despite the fact that internal guidelines create no due
process entitlements. Ramirez v. Ahn, 843 F.2d 864, 867
(Sth Cir. 1988); Levitt v. University of Texas at El Paso, 759
F.2d 1224, 1229-1230 (Sth Cir. 1985). In other instances,
Stem has cited Texas State law in support of his claims
despite the fact that 42 U.S.C. 1983 exists to redress
violations of federal rights. Gomez v. Toledo, 446 U.S. 620,

Ye

100 S.Ct. 1920 (1980). Stem has cited Moore v. Sints, 442
US. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), for the
proposition that "family integrity" represents a constitutionally
protected interest despite the fact that the court declined to
find such an interest. (In Moore the plaintiffs attacked a
state court proceeding alleging that the custody case violated
their right to "family integrity.") The Supreme Court,
however, never reached the issue of whether a general
allegation of “family integrity" states a constitutionally
protected interest. Instead, the Supreme Court held that
this collaterally attacked a State court custody procedure,
abstained under Younger v. Harris, and dismissed the case.
Moore, supra, 442 U.S. at 435-436, 99 S.Ct. at 2283. Stem
has consistently ignored Hodorowski v. Ray, 844 F.2d 12106
(Sth Cir. 1988).

The Petitioner has clearly founded his lawsuit on the
existence of rights for which no legal authority can be found.
Close scrutiny of those claims generally leads to the
conclusion that the law is contrary to his claims. He has not
in any instance been able to comply with Harlow; he has
not been able to satisfy Elliott v. Perez, supra. He has cited
cases for propositions of law which they will not support. It
has become perfectly clear that the Petitioner’s strategy is to
scatter as much shot as possible in the hope that some will
find a receptive target. This approach treats with disdain
the prior pronouncements of this Court and of the Court of
Appeals. Clearly, in the absence of any support for his
theories, Petitioner’s arguments should be rejected.

Respondents pray that this Court therefore deny
Petitioner’s Petition For Certiorari.

Respectfully submitted,

JIM MATTOX
Attorney General of 'Texas

1 PF

MARY F. KELLER
First Assistant Attorney
General

LOU McCREARY
Executive Assistant
Attorney General

DELMAR CAIN
Chief, Tort Litigation
Division

General
P.O. Box 12548

Capitol Station

Austin, Texas 78711-2548
(512) 463-2197, Ext. 207
(512) 463-2224 (Fax)

—~ e
CERTIFICATE OF SERVICE

I hereby certify that three true and correct copies of the
foregoing instrument have been sent via W.S. Mail, certified,
return receipt requested on this the B day of December,
1990 to:

John K. Grubb Chari Harneit-Kiger

1900 West Loop South, 1900 West Loop South,
Suite 1100 Suite 1100

Houston, Texas 77027 Houston, Texas 77017

Eric Nelson Roderick Q. Lawrence

3303 Main, Suite 300 1001 Preston

Houston, Texas 77002 Houston, Texas 77002

PAYHICK J. FEENEY
Assistant Attorney
General

APPENDIX

A-1

oe ETB
UKITED STATES DISTRICT COURT
FOR THE SOUTHCRN DISTRICT OF TEXAS he
HOUSTON DIVISION .
STEPHEN C. STEM, 6 ee eee
§ F ei 3 be
Plaintiff, § apage
§ re OO1:
Vv. § 13) - s & we we +
§ CIVIL ACTION NO.
RALPH AHEARN, CHKIS CARD, 8
HARRIS COUNTY CHILDREN’S ‘ ao
PROTECTIVE SERVICE, and ‘ ci:
HARRIS COUNTY, § RECEIVEL
§
Defendants. & AUG 30 1038
COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, STEPHEN Cc. STEM, Plaintiff, complaining of
RALPH AHEARN, CHRIS CARD, HARRIS COUNTY CHILDREN’S PROTECTIVE
SERVICES, and HARRIS COUNTY, Defendants, and in support thereof
would shew unto the Court as follows:

1. Jurisdiction is founded on the existence of a
Federal - question and the amount in controversy. 28 U.S.C. §1331
and 28 U.S.C. §1343. This action arises under the Fifth, Sixth
and Fourteenth Amendments to the United States Constitution, and
42 U.S.C.A. §§1983 and 1985. The amount in controversy,
exclusive of interest and cost, exceeds the sum of $10,000
against each of the Defendants.

2. Plaintiff, STEPHEN C. STEM, is the father of two
small children, SARAH ELIZABETH STEM and STEPHEN C. STEM, Jr.
At the time of the filing of this Complaint, SARAH ELIZABETH
STEM is ive years. old, having been born on June 7, 1983, and
STEPHEN C. STEM, Jr., is three years, nine months of age, having
been born on November 4, 1984.

Appendix "A"

A-2

Be At all times material to this Complaint, the
Defendant, RALPH AHEARN was an employee of HARRIS COUNTY
CHILDREN’S PROTECTIVE SERVICES and HARRIS COUNTY, and was under
the supervision of CHRIS CARD.

4. At all times material to this Complaint, the
Defendant, CHRIS CARD, was the immediate supervisor of RALPH
AHEARN at HARRIS COUNTY CHILDREN’S PROTBCTIVE SERVICES.

5. At all times mecterial to this Complaint, HARRIS
COUNTY CHILDREN’S PROTECTIVE SERVICES is the part of the HARRIS
COUNTY which investigates child abuse and sexual abuse of
children in HARRIS COUNTY, Texas.

6. On June 5, 1986, Plaintiff’s wife, LEE ANNE STEM
filed a divorce against STEPHEN C. STEM on the grounds that the
marriage had become insupportable because of conflict and
discord between LEE ANNE STEM and STEPHEN C. STEM that destroyed
the legitimate ends of the marriage relationship and prevented
any reasonable expectation of reconciliation. In iate June and
early July of 1986, STEPHEN C. STEM and his wife were able to
work out an informal agreement that provided, in essence, that
both parents acted as the Temporary Joint Conservators for their
children, SARAH ELIZABETH STEM and STEPHEN C. STEM, Jr. (Joint
Custody), that STEPHEN C. STEM would have possession of the
children from 6:00 p.m. on the first Wedne«day of each month to
6:00 p.m. on the following Sunday, from 6:00 p.m. on the third
Wednesday of each month to 6:00 p.m. on the following Sunday,
and that during the weeks when he didn’t have the children over

the weekend, he would have the children from 6:00 to 8:30 p.m.

-2-

A-3

on Thursday, LLL ANKLE STEM would have the children at o1] other
times unless the parties agreed otherwise. This informal
agreement was reduced to a memorandum dated July 9, 1986, and
initialed by the parties.

7. On Sunday, August 24, 1986, in accordance with
their agreement, STEPHEN C. STEM returned SARAH ELIZABETH STEM
and STEPHEN C. STEM, Jr. to LEE ANNE STEM.

8. On Monday, August 25, 1986, LEE ANNE STEM took
SARAH ELIZABETH STEM to Texas Children’s Hospital, reported that
STEPHEN C. STEM had sexually abused his daughter, that when
SARAH ELIZABETH STEM was returned to LEE ANNE STEM the day
before by STEPHEN C. STEM, that SARAH ELIZABETH STEM complained
that her vagina hurt, and that LEE ANNE STEM had inspected SARAH
ELIZABETH STEM’s genital area and found a small tear between the
vagina and the rectum. In spite of these allegations, Dr. Gunn
found no such tears. The physical exam of SARAHH ELIZABETH STEM
was normal. Proceeding cautiously, Dr. Gunn did a blood test,
throat cultures, vaginal cultures and rectal cultures on SARAH
ELIZABETH STEM to determine if she had been sexually abused; 411
of these medical tests turned out to be negative.

9. On or about August 25, 1986, RALPH AHEARN of the
HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES received a referral
regarding sexual abuse by STEPHEN C. STEM of his daughter, SARAH
ELIZABETH STEM. Mr. Ahearn set up an appointment with LEE ANNE
STEM and did meet with LEE ANNE STEM and SARAH ELIZABETH STEM on
or about August 28, 1986. LEE ANNE STEM and SARAH ELIZABETH STEM

were taken into a room at HARRIS COUNTY CHILDREN’S PROTECTIVE

-3-

A-4

SERViCCS where they met together with RALPH AHEARN for
approximately one hour; there was no video camera in this room,
no recording or any other device to preserve the allegations
that were being made against STEPHEN C. STEM, in front of his
child. Next, RALPH AHEARN took SARAH ELIZABETH STEM into a
video room by herself to videotape SARAH ELIZABETH STEM with
“anatomically correct" dolls and to ask her questions about the
alleged sexual abuse. However, SARAH ELIZABETH STEM would not
recite the story to RALPH AHEARN in the video room, so RALPH
AHEARN then had LEE ANNE STEM come into the video room where he
sought to make a video of SARAH ELIZABETH STEM concerning the
purported sexual abuse by STEPHEN Cc. STEM. Throughout the
entire video LEE ANNE STEM remained present, and in many cases
encouraged SARAH ELIZABETH STEM. The statements obtained during
the video are in many cases inconsistent with the statements
made by LEE ANNE STEM, and are inconsistent with purported
hearsay statements made to RALPH AHEARN on September 8, 1986, in
an unrecorded conversation with SARAH ELIZABETH STEM.

10. The Defendants, RALPH AHEARN, CHRIS CARD, HARRIS
COUNTY CHILDREN’S PROTECTIVE SERVICES, and HARRIS COUNTY, did
not notify STEPHEN C. STEM that they. were going to seek to
conduct a video examination of his daughter and accuse him of
sexually molesting his daughter. They didn’t give him the
opportunity of notice or the opportunity to be present. They
did give LEE ANNE STEM the opportunity to be present, and they

did not give STEPHEN C. STEM an opportunity to examine his

daughter.

-4-

A-5

aes On August 27, 19:G, LEE ANNE STEM caused her
attorney, Michael Toomey, to file with the divorce court, her
request, in essence, that LEE ANNE STEM be appointed the
Managing Conservator of the children, being the person with all
of the rights of a parent, to the exclusion of STEPHEN C. STEM.
Significantly, this request was filed with the Court after
Dr. Gunn found no physical evidence of sexual abuse and before
LEE ANNE STEM ever met with HARRIS COUNTY CHILDREN’S PROTECTIVE
SERVICES and RALPH AHEARN regarding the possible investigation
of sexual abuse.

12. In the August 28, 1986 meeting, RALPH AHEARN
informed LEE ANNE STEM that she should not allow the child’s
father, STEPHEN C. STEM, to see his children, and that she
should not allow him to even talk to his own children on the
phone. As will be described later, Defendant, RALPH AHEARN,
never contacted STEPHEN C. STEM to explain to him any of the
allegations that were being made against him by LEE ANNE STEM.
The actions by RALPH AHEARN in advising LEE ANNE STEM to allow
STEPHEN C. STEM to have no contact whatsoever with his chiidren
amounted to a de facto termination of his parental rights by
HARRIS COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES, and
RALPH AHEARN, without any due process of law -~- or for that
matter, any process.

13. Then LEE ANNE STEM informed STEPHEN C. STEM that
he could not see his children and he could not talk to his
children on the phone, and that she could not tell him the

reason why and that he would have to find out the reasons

-5-

A-6

through his attorney, who would have to find out from her
attorney. As will be shown later, on September 9, 1986, LEE
ANNE STEM’s attorney, Michael Toomey, within ten minutes of the
court time, was still not disclosing to STEPHEN C. STEM or to
his attorney that LEE ANNE STEM, HARRIS COUNTY CHILDREN’S
PROTECTIVE SERVICES and RALPH AHEARN were fixing to walk into a
hearing and accuse STEPHEN C. STEM of sexual molesting his
daughter.

14. It is alleged that RALPH AHEARN knew that LEE ANNE
STEM’s attorney was an influential member of the Texas
Legislature. It is known that RALPH AHEARN talked to LEE ANNE
STEM’s attorney from RALPH AHEARN’s home, and possibly from
HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES. RALPH AHEARN
still did not contact STEPHEN C. STEM to investigate the
allegations of sexual abuse against STEPHEN C. STEM.

15. It is believed that the Defendant, RALPH AHEARN,
again talked to Michael Toomey on September 8, 1988, and was
apprised of the fact that there was a court hearing for the next
day, and that RALPH AHEARN needed to make a home study or home
visit with the child prior to the September 9, 1986 court
hearing.

16. On the evening of September 8, 1986, Defendant,
RALPH AHEARN, went to visit LEE ANNE STEM and SARAH ELIZABETH
STEM in their home; however, in fact he did not visit them in
their house, but rather he visited LEE ANNE STEM and SARAH
ELIZABETH STEM in LEE ANNE STEM’s parents’ house. Supposedly,

at this meeting, which RALPH AHEARN failed to videotape or

=-6-

A-7

record, SARAL CLIZABiTH STEM privately informed him that
something icky had come out of her father’s penis and gotten on
her stomach or tummy.

17. During the lunch hour on September 8, 1986,
Defendant, RALPH AHEARN, called STZPHEN C. STEM’s office number,
and left a message at approximately 12:30 p.m. for STEPHEN C.
STEM to return the call -- the message did not say who RALPH
AHEARN was with, or why he was calling. Of course, it was
@uring the lunch hour when STEPHEN C. STEM was out of his
office. After lunch Plaintiff, STEPHEN C. STEM, phoned
Defendant, RALPH AHEARN, at the number given, the phone was
answered by HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES,
Plaintiff asked the secretary of HARRIS COUNTY CHILDREN’S
PROTECTIVE SERVICES to speak to Mr. Ahearn, and was advised that
Defendant, RALPH AHEARN, was not in the office nor would he be
in the office for the remainder of the day.

18. On the morning of September 9, 1986, Mr. Toomey
would not state why the Joint Managing Conservatorship that had
been worked out by the parties and reduced to memorandum on
July 9, 1986, had not been successful. Literally as proceeding
into the hearing room, RALPH AHEARN appeared, introduced
himself, and said that he was down there to testify that
STEPHEN C. STEM had sexually abused his daughter. Defendant,
RALPH AHEARN’s claim caught STEPHEN C. STEM totally by surprise.

19. Immediately after the September 9, 1986 hearing
was cancelled, Defendant, RALPH AHEARN, told Plaintiff,

STEPHEN C. STEM, that he believed that Plaintiff, STEPHEN Cc.

Jeo

A-8

STIM, sexually molested his three year old daughter because the
three year old was reluctant to talk about the “lurid” incident
which indicated that the incident had indeed taken place, that
the three year old had described the alleged incident to him in
detail and that he had this description on videotape in his
briefcase, and that he had medical verification.

20. In fact, the videotape does not demonstrate any
"lurid" incident. In fact, the Defendant, RALPH AHEARN, knew on
the morning of September 9, 1986, that no medical verification
existed, and he knew, in fact, that the medical findings of the
doctor regarding an alleged tear between the vagina and the
rectum were contradictory to the gratenents of LEE ANNE STEM.

21. As a result of these allegations of sexual abuse
by Defendant, RALPH AHEARN, HARRIS COUNTY CHILDREN’S PROTECTIVE
SERVICES, and HARRIS COUNTY, your Plaintiff, STEPHEN C. STEM,
lost the Joint Conservatorship informal agreement which he had
with his wife in early July, 1986, his wife ended up being
appointed the Managing Conservator of his children and was given
all of the rights of a parent to the exclusion of STEPHEN C.
STEM, except for the limited visitation rights which he was
ultimately able to obtain. STEPHEN C. STEM did not get to see
his children, be around his children, or even talk with his
children for many months. STEPHEN C. STEM had to spend money on
psychologists and psychiatrists to prove that he was not a
pervert or a sexual molester of his daughter and the Plaintiff,
STEPHEN C. STEM, still lives in fear of false accusations. Your
Plaintiff, STEPHEN C. STEM, has suffered past mental anguish, is

-8-
C88-709

A-9

presently suffering mental anguish and in all probability will
suffer mental anguish for the indefinite future, if not for the
rest of his life.

22. Your Plaintiff, STEPHEN C. STEM, alleges that it
has been the custom, practice, and policy of Defendants, RALPH
AHEARN, CHRIS CARD, HARRIS COUNTY CHILDREN’S PROTECTIVE
SERVICES, and HARRIS COUNTY to fail to establish and use
reasonable screening procedures to eliminate the false
accusations of sexual molestation against fathers, such as
STEPHEN C. STEM, and in fact against STEPHEN C. STEM.

23. Your Plaintiff alleges that it is the custon,
practice, and policy of Defendants, RALPH AHEARN, CHRIS CARD,
HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES, and HARRIS COUNTY
to fail to establish and use reasonable screening and
investigative procedures when a divorce is pending, to eliminate
false accusations of sexual molestation against father, knowing
full” well that in the vast majority of cases where a divorce is
pending and where such accusations are made in connection with a
child custody battle, that -such accusations are false.

24. Your Plaintiff, STEPHEN C. STEM, alleges that
Defendant, RALPH AHEARN, was grossly negligent in failing to
investigate the discrepancy between LEE ANNE STEM’s allegations
of a tear between the vagina and the rectum, and the doctor’s
determination on August 25, 1986, that no such tear existed.
The Defendant, ‘HRIS CARD, was grossly negligent in failing to
supervise Defendant, RALPH AHEARN, and if necessary, to assign
other employees to investigate the discrepancy between LEE ANNE

-9-
C88-709

A-10

STEM’s statements and the doctor’s findings. The Defendant,
HARRIS COUNTY and HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES
were grossly negligent in failing to see that Defendant, RALPH
AHEARN, investigated these discrepancies, and in failing to
establish policies and procedures to make certain that if
Defendant, RALPH AHEARN, was not available, that such
discrepancies would be timely and efficiently investigated by
another social worker.

25. The Defendants, HARRIS COUNTY, HARRIS COUNTY
CHILDREN’S PROTECTIVE SERVICES, CHRIS CARD and RALPH AHEARN,
failed to follow through and promptly determine that the blood
test, throat cultures, vaginal cultures, and rectal cultures
taken on SARAH ELIZABETH STEM on August 25, 1986, were in fact
negative. Your Plaintiff alleges that such failure to follow
through is in fact a practice and custom of HARRIS COUNTY and
HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES.

26. Your Plaintiff alleges that the Defendants, HARRIS
COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES, CHRIS CARD
and RALPH AHEARN, followed a custom or practice of not timely
making home visits in the home of the child so that the children
can be observed in a natural surrounding, in order to
investigate allegations of sexual abuse. As a matter of fact,
in this case, they never made any investigation in the home of
LEE ANNE STEM, but rather conducted one in the home of LEE ANNE
STEM’s parents. They never made any attempt whatsoever to

conduct any home investigation or home study in Plaintiff’s

home.

-10-

A-11

27. Plaintiff alleges that the fendants, HARRIS
COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES, CHRIS CARD
and RALPH AHEARN, were grossly negligent in conducting a
one-hour session with Plaintiff’s child, with her mother
present, in the room, without recording it, without giving
Plaintiff motice, thereby leaving your Plaintiff, STEPHEN C.
STEM, no way to effectively refute what Defendant, RALPH AHEARN,
says the Plaintiff’s daughter said (rank hearsay). Furthermore,
your Plaintiff alleges that it is the custom, practice, and
policy of the HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES to
allow social workers such as RALPH AHEARN to talk to children
regarding sexual abuse by their fathers in the presence of the
child’s mother without recording the discussion, so that the
social worker can then claim that the child made accusations
against the father; of course, by failing to record such
conversations, the Defendants have effectively denied a father
any opportunity to be able to refute whether or not such
statements were made to the Defendants.

28. Your Plaintiff alleges that the Defendants, HARRIS
COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES, CHRIS CARD
ang RALPH AHEARN, have a custom or practice of allowing mothers
to be present in a video room when a video is being taken of a
child, and they have a practice of not notifying fathers that a
video is being taken, and prohibiting fathers srom being present

__when-—acecusations are being made against then.
29. Your Plaintiff, STEPHEN C. STEM, alleges that

Defendant, HARRIS COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE

-li-

A-12

SERVICES, CHRIS CARD and RALPH AHEARN, were grossly negligent by
failing to immediately contact STEPHEN C. STEM, giving notice of
the charges against him, and giving him an opportunity to be
heard; as a matter of act, your Plaintiff alleges that it is the
policy, custom and practice of HARRIS COUNTY, and HARRIS COUNTY
CHILDREN’S PROTECTIVE SERVICES to not timely contact fathers, to
give fathers no notice of allegations against them, and to give
fathers no opportunity to be heard before HARRIS COUNTY and
HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES conclude that
sexual molestation has occurred.

30. Your Plaintiff alleges that for the Defendant,
RALPH AHEARN, to advise and inform LEE ANNE STEM that she should
not allow SARAH and CHUCK’s father to see them, to be present
with them, to have them, or to even talk to them, amounts to a
de facto termination of the parental rights of the Plaintiff,
STEPHEN C. STEM. Your Plaintiff alleges that it is the custon,
practice and policy of Defendants, HARRIS COUNTY, HARRIS COUNTY
CHILDREN’S PROTECTIVE SERVICES, CHRIS CARD, and RALPH AHEARN, fo
use such procedures and methods to effectively terminate the
parental rights of fathers.

31. Your Plaintiff alleges that Defendants, HARRIS
COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES and CHRIS
CARD, failed to properly train and instruct the Defendant, RALPH
AHEARN, in the proper procedures for investigating allegations
of sexual abuse and for investigating false allegations of

sexual abuse against fathers.

-12-
88-709

A-13

32. Your Plaintiff alleyes that Detendants, HARRIS
COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES, and CHRIS
CARD, fail to implement reasonable’ policies and procedures to
ensure that, if a social worker was not following through on an
investigation, or is ill, that the investigation will proceed
timely anyway.

33. Your Plaintiff alleges that the Defendant, CHRIS
CARD, was grossly negligent in his training, supervision, and
management of the Defendant, RALPH AHEARN, and the cases handled
by Defendant, RALPH AHEARN.

34. Your Plaintiff alleges that Defendants, HARRIS
COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES, CHRIS CARD
and RALPH AHEARN, follow the custom, practice and policy of not
giving fathers written notice (or for that matter, oral notice
or any notice) of the reasons why a father’s children are being
taken away from him, who he may contact for information relating
to his children, or a summary of any of his rights, or
explanation of any of the procedures relating to his children.

35. Your Plaintiff says that one of the fundamental
rights guaranteed to a person by the United States Constitution
is the right of life, liberty, and pursuit of happiness -- and
this encompasses the right of a parent with this children. Your
Plaintiff alleges that the Defendants, as described in the
aforementioned acts, deprived the Plaintiff of his
constitutional rights relating to his children.

36. The aforementioned acts of the Defendants deprived

Plaintiff of his right to life and liberty without due process

of law.
-13-
88-709

A-14

37. Your Plaintiff alleges that the atorementioned
deeds, acts, policies, and procedures of the petendante have
denied him the right to be informed as to the nature and the
cause of the accusations against him, and the right to confront
witnesses against him, in violation of the Constitution of the
United States.

38. Your Plaintiff alleges that the aforementioned
deeds, acts, customs, practices and policies of the Defendants
have deprived him of life and liberty without due process of law
in violation of the Fourteenth Amendment to the Constitution of
the United States.

39. Your Plaintiff alleges that the aforementioned
acts, deeds, customs, practices and policies of the Defendants
have denied him the equal protection of the law.

40. Your Plaintiff alleges that the aforementioned
acts, deeds, customs, practices and policies of the Defendants,
HARRIS COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES,
CHRIS CARD and RALPS AHEARN, subjected or caused to be subjected
STEPHEN C. STEM, a citizen of the United States, to deprivation
of his rights, privileges, or immunities secured by the
Constitution and laws. Accordingly, the Defendants are liable
to the Plaintiff, STEPHEN C. STEM, for his injuries, and the
Plaintiff, STEPHEN C. STEM, now sues the Defendants, HARRIS
COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES, CHRIS CARD
and RALPH AHEARN, for the sum of ONE MILLION DOLLARS

($1,000,000.00) as provided under 42 U.S.C. §1983.

-14-

A-15

41. Your Plaintiff, SILVHEN C. STEM, alleges that the
aforementioned acts, deeds, customs, practices and policies of
Defendants, CHRIS CARD and RALPH AHEARN, and others, constitute
a conspiracy to interfere with your Plaintiff’s civil rights,
within the meaning of 42 U.S.C. §1885, and in furtherance of
such conspiracy your Plaintiff has been injured in his person
and deprived of having and exercising the rights and privileges
of a citizen of the United States. Accordingly, the Plaintiff,
STEPHEN C. STEM, now sues the Defendants, CHRIS CARD and RALPH
AHEARN, for actual damages in the amount of ONE MILLION DOLLARS
($1,000,000.00) as provided for under 42 U.S.C. §1985.

42. Your Plaintiff alleges that the actions of the
Defendants, HARRIS COUNTY, HARRIS COUNTY CHILDREN’S PROTECTIVE
SERVICES, CHRIS CARD and RALPH AHEARN, exhibit such gross
negligence, and reckless disregard for the civil rights of the
Plaintiff, that upon final hearing hereof, the trier of the
facts should award what are known as exemplary or punitive
damages -- that is, damages which are designed tc punish the
Defendants and to make an example out of the Defendants, so that
the Defendants, and others similarly situated, will never engage
in such reprehensible conduct again. Your Plaintiff, STEPHEN C.
STEM, requests that the trier of facts award FIVE MILLION
DOLLARS ($5,000,000.00) in punitive or exemplary damages.

43. This action is brought to enforce the Plaintiff’s
rights under 42 U.S.C. §§1983 and 1985, and the Plaintiff, upon
final hearing hereof, should have and recover judgment against

the Defendants for reasonable attorney’s fees as part of the

cost.
-15-
88-709

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff, STEPHEN C.
STEM, prays that the Defendants, RALPH AHEARN, CHRIS CARD,
HARRIS COUNTY CHILDREN’S PROTECTIVE SERVICES and HARRIS COUNTY,
be summoned and required to answer herein, and that upon final
hearing hereof, he have and recover judgment against Defendants,
RALPH AHEARN, CHRIS CARD, HARRIS COUNTY CHILDREN’S PROTECTIVE
SERVICES and HARRIS COUNTY, jointly and severally, the sum of
ONE MILLION DOLLARS ($1,000,000.00) in damages, judgment against
Defendants, RALPH AHEARN and CHRIS CARD, jointly and severally
for the sum of ONE MILLION DOLLARS ($1,000,000.00), judgment
against all Defendants for the sum of FIVE MILLION DOLLARS
($5,000,000.00) punitive or exemplary damages, reasonable
attorney’s fees, costs of court, and that your Plaintiff,
STEPHEN C. STEM, have such other and further relief, both at law
and in equity, special and general, to which he may show himself
justly entitled.

Respectfully submitted,

Aut. Cc. Ab

STEPHEN C. STEM, PLAINTIFF

oo
obese for Plaintiff
FBA # 3250

1900 West Loop Scuth, Suite 850
Houston, Texas 77027
(713) 961-5533

-16-

A-17

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

STEPHEN C. STEM,

Plaintiff,

Vv.
CIVIL ACTION NO.

RALPH AHEARN, CHRIS CARD,
HARRIS COUNTY CHILDREN’S
PROTECTIVE SERVICE, and
HARRIS COUNTY,

PFA SA OOO Aaaanae

Defendants.
DEMAND FOR TRIAL BY JURY

The Plaintiff, STEPHEN C. STEM, demands a trial by
jury.

Respectfully submitted,

f_A~A—

J K/ GRUBB
torney for Plaintiff
BA # 3250

1900 West Loop South, Suite 850
Houston, Texas 77027
(713) 961-5533

-17-

A-18

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

STEPHEN STEM, §
Plaintiff §
. &
vs. § CIVIL ACTION NUMBER
§ H-88-2813
RALPH AHEARN, ET AL, §
Defendants 4
DEFENDANTS’ CARD AND AHEARN
MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW the Attorney General’s Office on behalf of
Defendants Card and Ahearn in the above cause and files
this, its Motion For Summary Judgment.

I.
INTRODUCTION

Plaintiff filed suit against Texas Department of Human
Services employees Ahearn and Card alleging that they acted
in violation of 42 U.S.C. §1983, 42 U.S.C. §1985 and the
United States Constitution.

Plaintiff in his complaint alleges Defendants Ahearn
and Card received a c« plaint alleging that Plaintiff sexu-
ally abused his d’ y.iter and that Defendants’ investigation
of that complaint was negligent. Plaintiff alleges that
Defendant Card negligently supervised Defendant Ahearn.
Plaintiff alleges that Defendants’ actions, specifically

Defendant Ahearn telling the children’s mother not to let

Appendix "B"

A-19

Plaintiff see his children and Plaintiff’s subsequent loss
of custody of his children amounted to a de facto termina-
tion of Plaintiff’s parental rights to his children without
due process. Plaintiff also complains that his right to
confront the witnesses against him and that the right to be
informed of charges against him was denied and sues for
exemplary and punitive damages under 42 U.S.C. § 1983 and §
1985 and under the equal protection clause. In support of
this motion, Defendants rely upon their own pleadings and
Plaintiff’s pleadings which for the purposes of this motion
are assumed to be true and the attachments hereto.
II.

DEFENDANTS AHEARN AND CARD ARE IMMUNE
IN THEIR OFFICIAL CAPACITY BY THE 11TH AMENDMENT

As the Court is aware, individuals who work for the
State have two types of immunities from suit. They have an
immunity for acts taken in their official capacity as well
as for acts taken in their individual capacities. A judg-
ment awarded against a defendant in their official capacity
must be satisfied by the State Treasury while a judgment
awarded against a defendant in their individual capacity
must be satisfied by that individual’s personal finances.
The immunity for government officials in their official
capacity is absolute as liability is barred against the

government by the 11th Amendment.

A-20

It is well settled law that, unless expressly waived,
sovereign immunity, as protected by the Eleventh Amendment,
deprives a federal court of jurisdiction to hear a_ suit
against the State or one of its agencies. Pennhurst State
Schoo] and Hospital v. Halderman, 465 U.S. 88, 104 S.Ct.
900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651,
94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

The Supreme Court has interpreted the Eleventh Amend-
ment to effectuate its purpose of restoring the "fundamental
rule of jurisprudence" that "a state may not be sued without
its consent,” Ex Parte New York, 256 U.S. 490, 41 S.Ct.
588, 65 L.Ed. 1057 (1921). Thus, the court has decided that
a suit for damages against a state by a citizen of the same
state, although not specifically prohibited by the Amend-
ment’s language, is barred. Hans v. Louisiana, 134 U.S. 1,
10 S.Ct. 504, 33 L.Ed. 842 (1890); Duhne v. New Jersey, 251
U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920).

Tie Fifth Circuit has held that generally, for purposes
of Eleventh Amendment and analysis, state agencies are
considered arms of the State and are entitled to invoke the
constitutional immunity of the State. United Carolina Bank

v. Board of Regents, 665 F.2d 553, 557 (Sth Cir. 1982).
| The doctrine of sovereign immunity as recognized by the
Eleventh Amendment precludes relief against State agencies

and officials which must be satisfied from the State

A-21

Treasury. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. i139, 39
L.Ed.2d 358 (1979); Sheuvrer _v. Rhodes, 416 U.S. 232, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974); v W y
University, 728 F.2d 714 (5th Cir. 1984); Brandon v. Holt
469 U.S. 464, 105 S. Ct. 873, 83 L.Ed. 2d 878 (1985);
Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d
1114 (1978).

"It is also well established that even though a state

is not named a party to the action, the suit may none-

theless be barred by the Eleventh Amendment. Thus

the rule has evolved that a suit by private par-

ties seeking to impose a liability which must be

paid from public funds in the State Treasury is barred
by the Eleventh Amendment." (Citations omitted.)

Edelman v. Jordan at 415 U.S. at 663, 94 S.Ct. at

1355-6.

The Texas Department of Human Services (hereinafter
referred to as "TDHS") is an agency of the State of Texas.
Defendants Ahearn and Card were at all times pertinent to
the instant case an official or employee of TDHS and all
acts relevant to this cause of action were done in the
course of the execution of their official duties. See
Attachments A, B, C, and D. The funding of TDHS is governed
by State law and is mostly from State Legislative appropria-
tions. Tex.Hum.Res.Code Ann. §21.001, et seg. (Vernon
1980). Consequently, the damages sought by Plaintiff from
Defendants Card and Ahearn in their official capacities
would have to be paid from State revenues. Thus, Plain-

tiff’s suit is in substance and effect a suit against the

A-22

State of Texas, which is the real party in interest and
which has not consented to be sued by this Piaintiff.
Worchester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct.
185, 82 L.Ed. 268 (1937); Edelman v. Jordan, supra.

Plaintiff has pled no waiver and 42 U.S.C. § 1983 does
not constitute a waiver of official immunity. Almond
Pharmacy Inc. v. Mankowitz, 587 F.Supp. 925 (N.D. I1ll.,
1984). The Eleventh Amendment bars Plaintiff’s damage
Claims against the State of Texas, its alter ego TDHS, and
all officials in their official capacity. United Carolina
Bank, 665 F.2d at 558-9. Therefore, all monetary claims
against Defendants Ahearn and Card in their official capaci-
ties must be dismissed.

III.
A SUIT BY PLAINTIFF AGAINST MR. CARD AND MR. AHEARN
IN THEIR INDIVIDUAL CAPACITIES IS BARRED BY
THE DOCTRINE OF QUALIFIED IMMUNITY.

In addition, Mr. Card and Mr. Ahearn are immune from
liability in their individual capacities by the doctrine of
qualified immunity and Defendants contend that they are
entitled to a summary judgment on the basis of their quali-
fied immunity.

Under the doctrine of qualified immunity a defendant
may be sued as an individual, whereby any judgment against
that individual will be satisfied by that individual’s

personal finances, only if his conduct violated clearly

A-23

established constitutional rights of which a _ reasonable
person would have known. Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
Qualified immunity rests on the "objective reasonableness of
an official’s conduct as measured by reference to clearly
established law," that is, law that "was clearly established
at the time an action occurred." Jd.; Kentucky v. Graham,
473 U.S. 159, 167, 105 §.Ct. 3099, 3106, 87 L.Ed.2d 114
(1985). “The fulcrum for this objective (test) is the
existence, at the time of the official’s action, of clearly
established judicial decisions that make his action uncon-
stitutional." Bogard'v. Cook, 586 F.2d 399, 411 (5th Cir.
1978) cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d
2i3 €2979). No other factors are relevant to qualified
immunity but the objective reasonableness of the official’s
behavior. Harlow v. Fitzgerald, 457 U.S. at 815-819, 102
S.Ct. at 2736-2739; Davis v. Scherer, 468 U.S. 183, 193, 104
S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984).

Even plaintiff-oriented legal commentators now acknowl-
edge that for qualified immunity to be overcome, there must
“be little or no ambiguity in relevant case law as a_ condi-
tion to finding settled law; a case on point appears to be
required." Nahmod, CIVIL RIGHTS & CIVIL LIBERTIES LITIGA-
TION, 383 (Supp. 1985). It is not enough merely to "extrap-

Olate from pre-existing case law." Jd. This has long been

A-24

the approach of the Fifth Circuit. Sampson v. King, 693
F.2d 566, 570 (5th Cir. 1982); Clanton v. Orleans Parish
Schoo] Board, 649 F.2d 1084, 1100-1101 (5th Cir. 1981);
Dilmore v. Stubbs, 636 F.2d 966, 969-971 (Sth Cir. 1981);

Bogard v. Cook, 586 F.2d at 420-421. More recently, see
Thorne v. Jones, 765 F.2d 1270, 1277 (Sth Cir. 1985), cert.
den., __ sd SSC, 106 «COS CH. «=C1199, 89 L.Ed.2d 313
(1986).

Plaintiff has pled no case law which would establish
that at the time of the official’s action, there existed
clearly established judicial decisions which would make
Defendants’ actions unconstitutional. Because Plaintiff has
failed to cite a case which clearly established Defendants’
actions as unconstitutional, and in fact because no such
case law exists, Plaintiff has failed to pierce Defendants’
Card’s and Ahearn’s immunity and this case should be dis-
missed.

To the contrary, Defendants Card and Ahearn were re-
quired to act as they did by law. Once TDHS received a
report of child abuse, the TDHS was required by law to
conduct an investigation to determine if the abuse occurred.
Tex. Fam. Code Ann. § 34.05 (Vernon 1986), Attachment A.
After the case was assigned to Mr. Ahearn he conducted his

investigation as required by law. Tex.Fam.Code Ann. § 34.05

A-25

(Vernon 1986). The determination as to whether or not a
child has been abused is left to the sole discretion of the
TDHS employees. See Attachment A.

In addition the Courts have required Plaintiffs to be
explicit when pleading a cause of action which will result
in an immunity defense. The Plaintiff must show in his
pleadings, in very specific terms, why an immunity defense
will not stand.

The 5th Circuit in Elliott v. Perez, 751 F.2d 1472 (5th
Cir. 1985), held:

In cases against governmental officials
involving the likely defense of immu-
nity we require of trial judges that
they demand that the plaintiff’s com-
plaint state with factual detail and
particularity the basis for the claim
which necessarily includes why the
defendant-official cannot successfully
maintain the defense of immunity.

Id. at 1473.

The U.S. Supreme Court further emphasized this in Mitchel]
Vv. Forsyth, S72 U.8. Sai, S26, i205 8.Ct. 2806, 2815, 86

L.Ed.2d 411 (1985):

{U)nless the plaintiff’s allegations
state a claim of violation of clearly
established law, a defendant pleading
qualified immunity is entitled to dis-
missal before the commencement of dis-
covery.

These are substantive rights under federal law, not to

be abrogated or abridged by discovery and trial, until the

A-26

plaintiff shows a probable right to recovery based upon
specific pleading, as Harlow v. Fitzgerald, supra: Forsyth
vy. Mitchell, supra; and Elliott v. Perez, supra, hold. The
qualified immunity defense is such an important doctrine for
the protection of public servants from baseless suits, that
it is up to the trial judge, even without any motions by
opposing parties, to require the Plaintiff to plead those
specific facts. Elliott v. Perez, 751 F.2d at 1482. This
includes detailed facts supporting the contention that the
plea of immunity cannot be sustained. The denial of quali-
fied immunity or the Court’s decision to defer ruling on
qualified immunity is an immediately appealable order.
Mitchel] v. Forsyth, 472 U.S. 511, 529, 105 S.Ct. 2806,

2817, 86 L.Ed. 2d 411 (1985); Helton v. Clements 787 F.2d
1016, 1017 (Sth Cir. 1986). Because Plaintiff has not
specifically pled a cause of action which defeats Defen-

dants’ immunity, this cause should be dismissed.

IV.
PLAINTIFF FAILED TO ALLEGE A CAUSE OF
ACTION WHICH IS RECOVERABLE UNDER
42 U.S.C. §1983 BECAUSE PLAINTIFF
WAS AFFORDED DUE PROCESS

In addition to or in the alternative to the arguments
stated above, this cause should be dismissed because Plain-

tiff was afforded due process. 42 U.S.C. § 1983 states that

every person who under color of (state) is (deprived of)

oe ea OA RT aa

A-27

rights, privileges or immunities secured by the Constitution
and laws shall be liable to the party injured. 42 U.S.C. §
1983 is not a cause of action in and of itself, rather it is
a remedy to be utilized when rights secured by a federa] law
or the U.S. Constitution are violated. Maine v. Thiboutot,
448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Curtis v.
Taylor 625 F.2d 645 (Sth Cir. 1980).

Although Plaintiff does not specifically allege it, as
required by law, and assuming that the right to one’s’ child
is a right encompassed by the Federal Constitution, although
Plaintiff has failed to cite a case which so holds as_ re-
quired by law, Plaintiff still fails to allege an actionable
cause of action under 42 U.S.C. § 1983 because Plaintiff was
afforded due process.

Plaintiff alleges he was injured (lost custody or joint
managing conservatorship of his children) in part because
Defendants Ahearn and Card determined that Plaintiff abused
his daughter and because Defendant Ahearn told the chil-
dren’s mother to not let her children have any contact with
the Plaintiff. That deprivation of his right to have con-
tact with his children is a liberty interest which Plaintiff
apparently alleges he was deprived of without due process of
law as required by the 14th Amendment to the U.S. Constitu-
tion. But in fact Plaintiff was accorded due process before

his "liberty" was denied him. In his complaint against

10

A-28

Defendants Ahearn and Card, Plaintiff admits that he lost
joint managing conservatorship and the mother was appointed
scle managing conservator with Plaintiff getting limited
visitation only. Chapters 11 and 14 of the Texas Family
Code give state district courts the authority to adjudicate
and determine a parent’s rights to their children. Plain-
tiff’s due process was afforded him in state district court
when that court determined that it was in the best interests
of his children that Plaintiff lose his managing
conservatorship and limited his visitation rights. See
Attachment E. That is all the due process Plaintiff is
entitled to and therefore he has failed to state a claim
under 42 U.S.C. § 1983 and his cause of action should be
dismissed.
Vv.
PLAINTIFF FAILED TO ALLEGE A CAUSE OF ACTION UNDER
42 U.S.C. §1983 BECAUSE NEGLIGENCE BY A STATE OFFICIAL
DOES NOT IMPLICATE THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT

In addition or in the alternative to the above stated
arguments, this Court should dismiss this cause of action
against Defendants because under 42 U.S.C. §1983, negligence
is not a "deprivation" within the meaning of the Due Process
Clause. Plaintiff appears to allege that the negligent
investigation of the complaint of sexual abuse against

Plaintiff done by Defendants and Mr. Card’s negligent

11

A-29

supervision over Mr. Ahearn resulted in Plaintiff losing
custody of his children. Defendants’ alleged negligent
investigation of the complaint of abuse against Plaintiff
and alleged negligent supervision over the investigation
does not amount to a "deprivation" under 42 U.S.C. §1983.

The U.S. Supreme Court in Daniels v. Williams held that

the Due Process Clause is not implicated by a state official’s

negligent act causing unintended loss of or injury to life,
liberty or property rather, the Due Process Clause was
intended to secure an individual from an abuse of power by
government officials. Far from abuse of power, lack of due
care suggests no more than a failure to measure up to the
conduct of a reasonable person. Daniels v. Williams, 474
U.S. 327, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986).

The same argument would apply to all of Plaintiff’s
other claims, therefore, all of Plaintiff’s claims should be
dismissed.

vI.
A CAUSE OF ACTION UNDER 42 U.S.C. §1983 CANNOT
BE MAINTAINED UNDER A THEORY OF VICARIOUS LIABILITY
OR RESPONDEAT SUPERIOR
In addition to and/or in the alternative to the argu-

ments stated above, it is well settled that liability under

12

A-30

42 U.S.C. §1983 cannot be premised on a respondeat superior
or vicarious liability theory. Monel] v. New York City
Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018,

2036, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362,
96 S.Ct. 598, 46 L.Ed.24 561 (1976). Defendant Card was
merely Defendant Ahearn’s supervisor, he had no _ personal
knowledge of this case and only acted in a supervisory role.
(See Attachment B.) Therefore, the cause of action against
Defendant Card should be dismissed.

VII.

PLAINTIFF FAILS TO ALLEGE AN ACTIONABLE CAUSE

OF ACTION WHEN HE ALLEGES DEFENDANTS VIOLATED

HIS RIGHT TO CONFRONT WITNESSES AGAINST HIM

AND HIS RIGHT TO NOTICE OF CHARGES AGAINST

HIM.

Plaintiff purports to allege Defendants Card and Ahearn
violated his right to confront witnesses against him and his
right to notice of charges against him apparently as embod-
ied in the 6th Amendment to the U.S. Constitution.

The Courts have clearly held that the 6th Amendment
applies to criminal proceedings. Qlshausen v. Commissioner,
273 F.2d 23 (9th Cir. 1960). Plaintiff is apparently conm-
plaining ahout not being able to talk to Mr. Ahearn prior to
a civil proceeding on his ex-wife’s Motion to Modify Plain-

tiff’s Conservatorship. Because it was a civil proceeding

13

Server]

eae ve

A-31

and not a criminal one, Plaintiff’s allegations against
Defendants have no basis in law and should be dismissed.
More than that, Plaintiff’s claims are utterly frivo-
lous. Plaintiff complains that because Defendant Ahearn
would not talk to him about the child abuse complaint prior
to the modification hearing, which was subsequently post-
poned until after Ahearn talked with Plaintiff, Plaintiff’s
right to confront Ahearn and the right to be informed of the
charges against him were violated. Clearly Plaintiff’s
remedy was to use the various discovery devices available to
him to discover the evidence Ms. Stem intended to put on at
the modification hearing. Plaintiff’s unhappiness about the
level of preparation he and/or his attorney had for the
hearing should be directed at himself and/or his attorney
but certainly not at Defendants. Furthermore, Plaintiff
makes the claim that because Mr. Ahearn told Ms. Stem not to
let Mr. Stem have contact with the children, the Defendants
somehow terminated his parental rights. Only a court of law
can terminate a parent’s legal right to his or her child.
If Ms. Stem would not let Plaintiff see his children, then
Plaintiff’s remedy was to either file a Motion for Contempt
against Ms. Stem for violating the visitation order as
entered by the state district court or to petition the state

court for visitation rights. His remedy is not to sue two

14

A-32

TDHS employees for some sort of civil rights violation.
VIII.

MERE ALLEGATIONS OF CONSPIRACY CANNOT
SURVIVE A SUMMARY JUDGMENT MOTION

Plaintiff also purports to sue Defendants under 42
U.S.C. 1985, although Plaintiff has utterly failed to allege
any supporting facts or to even specify which subsection of
42 U.S.C. 1985 he sues under. Mere conclusory allegations
of a conspiracy without supporting facts cannot survive a
summary judgment motion. Henzel]_v. Gerstein 608 F.2d 654

(Sth Cir. 1980); Zentgraf v. Texas A & M University, 492 F.
Supp. 265 (S.D. Tex. 1980). Because Plaintiff has made mere

allegations of conspiracy this summary judgment should be
granted.
IX.

PLAINTIFF HAS FAILED TO ALLEGE AND
SHOW A CLASS-BASED ANIMUS

Assuming that Plaintiff sues under 42 U.S.C. 1985 (3)
or 42 U.S.C. 1985 (2), Plaintiff has still failed to state
an actionable claim because he has not alleged or shown a
class-based animus on the part of Defendants.

As the Court is aware, there are two different causes
of action set forth in 42 U.S.C. 1985 (2). The first part

of 42 U.S.C. 1985 requires that there has been an_ interfer-

ence with the federal court systen. Daigle v. Gulf State

15

;
4
4
¢

A-33

Utilities Co., Local No. 2286, 794 F.2d 974, 980 (5th Cir.
1980) cert. den., U.S. , 107 S.Ct. 648 (1986).

Clearly Plaintiff is not suing under that section for Plain-
tiff has not even referred to or alleged that any proceeding
even occurred in federal court.

The second part of 42 U.S.C. 1985 (2) proscribes' con-
spiracies that interfere with the administration of justice
in state court. ld. Both the second part of 1985 (2) as
well as 1985 (3) are directed at conspiracies that deprive
Plaintiff of equal protection and in order to state a claim
under the second part of 1985 (2) or (3) Plaintiff must
allege a class-based animus. JId. The Fifth Circuit held in
Daigle v. Gulf State Utilities Co. Union that ". . . we have
held that the Griffin race of class-based animus requirement
of §1985 (3) also applies to claims under the second part of
§1985 (2)." Daigle at 979.

The Fifth Circuit further held in Earnest v. Lowentritt
690 F.2d 1198, 1202 (5th Cir. 1982) that a failure by Plain-
tiff to allege or prove any racially based animus underlying
the conspiracy mandated dismissal of the action. Here
Plaintiff has neither alleged nor proven any racially based
animus nor any class-based animus and therefore his 42
U.S.C. 1985 cause of action should be dismissed.

xX.

42 U.S.C. 1985 DOES NOT APPLY TO
CONSPIRACIES TO DENY DUE PROCESS

16

A-34

Plaintiff in his complaint has apparently alleged that
he was denied his liberty interest (access to his child)
without due process. Even if access to your child is a
liberty interest protected by the Federal Constitution and
even if Plaintiff was denied due process, he has failed to
state a claim under 42 U.S.C. 1985 because that section of
the Civil Rights Act does not give a cause of action for a
conspiracy the purpose of which is to deny due process.
Rodriguez v. Carrol] 510 F.Supp. 547 (S.D. Tex. 1981). As
stated above, 42 U.S.C. 1985 applies to conspiracies to
deprive a Plaintiff of equal protection. Plaintiff has not
alleged a claim under the equal protection clause of the
United States Constitution nor is Plaintiff able to. Be-
cause Plaint:ff’s allegations of a denial of due process
does not state a claim under 42 U.S.C. 1985, this cause of
action should be dismissed.

xI.

PLAINTIFF HAS NOT ALLEGED A CONSPIRACY
AS CONTEMPLATED BY 42 U.S.C. 1985

Plaintiff alleged in Paragraph 41 of his Complaint that
the “aforementioned acts, deeds, customs, practices and
policies of Defendants Chris Card and Ralph Ahearn" and
unnamed "others" constitutes a conspiracy to interfere with

Plaintiff’s civil rights. The courts have long held that a

17

ona,

A-35

conspiracy as contemplated in 42 U.S.C. 1985 does not in-
Clude acts by a single business entity even though there
were two or more agents participating in the act.
Dombrowski v. Dowling 459 F.2d 190 (7th Cir. 1972).

- In the present case, Plaintiff has alleged that Defen-
Gants Card and Ahearn conspired against hin. Defendants
Card and Ahearn are employees of and agents of the Texas
Department of Human Services. See Attachments A, B, C and
D. Because Defendants Card and Ahearn and the State agency
are a single legal entity they cannot conspire with them-
selves. The present situation is analogous to Zentgraf v.
Texas A & M where Plaintiff sued the University and its
officials for conspiring to deprive Plaintiff of her civil
rights. The Court dismissed her claim holding that the
University and its officials constitute a single legal
entity which cannot conspire with itself in violation of §
1985. Zentgraf, 492 F.Supp. at 273. Because Defendants
Card and Ahearn do not constitute a conspiracy as conten-
plated by 42 U.S.C. 1985, this summary judgment should be
granted.

WHEREFORE. PREMISES CONSIDERED, Defendants pray that
this Court grant their Motion for Summary Judgment and
assess attorney’s fees and costs against Plaintiff for

filing a frivolous motion.

18

A-36

Respectfully submitted,

JIM MATTOX
Attorney General of Texas

MARY F. KELLER
First Assistant Attorney
General

LOU McCREARY
Executive Assistant Attorney
General

DELMAR L. CAIN
Chief, Tort Litigation Divi-
sion

Se Be L/

SUE BERKEL

Assistant Attorney General
State Bar No. 02202525
Tort Litigation Division
P. O. Box 12548, Capitol
Station

Austin, Texas 78711-2548
(512) 463-2197 Ext. 520

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the
above and foregoing instrument has been forwarded to all
counsel of record, by certified wash, spprere receipt re-
quested, on this, the Ad day of ECZAs/ se, 1988,
addressed as follows:

John Grubb
1900 W. Loop S., Suite 850
Houston, TX 77027

Eric H. Nelson

3303 Main, Suite 300
Houston, Texas 77002-9392

-~)
Roderick Q. Lawrence oe: ae
1001 Preston -
Houston, TX 77002 “

SUE BERKEL
Assistant Attorney General

19

THE STATE OF TEXAS
COUNTY OF TRAVIS

Before me, the undersigned authority, on this day
personally appeared SUE BERKEL, known to me to be the person
whose name is subscribed to the foregoing instrument, and
who, after being by me duly sworn, upon her oath, deposes
and says: that she is an Assistant Attorney General of the
State of Texas and is familiar with the facts of this case,
that she is authorized to make this affidavit, that she has

“read the foregoing instrument, and that the facts stated

therein are true and correct to the best of her knowledge

a ee

SUE BERKEL

and belief.

SUBSCRIBED AND SWORN TO before me, the undersigned

authority, on this, the jj{#4_ day of eee , 1988,

to certify which witness my hand and seal of office.

4

-
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS

Printed Name of Notary

My Commission Expires:

CFPC SEM
ANGELINA G -“RRERO

MOTARY PUDUL
STATE OF TEXAS

tay Comm Exo-res 11/30/89

20

A-38

IN THE U.S. DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

STEVEN C. ST=M
Vv.

ACTION CIVIL NO. H-88-2813
RALPH AHEARN et.al.

AMAAABAAW

AFFIDAVIT OF RALPH AHEARN

STATE OF TEXAS

AAW

COUNTY OF HARRIS

BEFORE ME, the undersigned official on this day ap-
peared Ralph Ahearn who is known to me and first being duly

sworn according to iaw upon his oath deposed and said:

My name is Ralph Ahearn. I am over eighteen years
of age and I currently reside and work in Harris County,
Texas. I have never been convicted of a crime and I am
fully competent to make this affidavit. I have personal
knowledge of the facts stated herein and they are all true
and correct.

I am a protective services caseworker with the
Texas Department of Human Services located in the Houston
office. I have been so employed from April 1, 1984 to
present. My duties as a case worker require that I investi-
gate referrals alleging abuse or neglect of children and

that I make a determination as to whether the abuse or

ra

A-39

neglect occurred and whether the Department of Human Servic-
es needs to take any action so as to protect the interest of
the minor cl.ildren who are the subject of the referrals.

On the 25th day of August 1986, the Department of
Human Services rece.-ed a referral from a medical doctor
that Sara Stem was potentially sexually abused. I was
assigned to investigate the referral on that same date. As
a part of my investigation which I was required to make by
state law, I interviewed the child victim several times as
well as several other persors who might have knowledge of
the sexual abuse. I conducted my investigation pursuant to
the standards and procedures set out in the child protective
services handbook.

Based on my investigation, as is reasonable prac-
tice in my profession, I determined in my discretion that
Sara Stem had been sexually abused by her father, the plain-
eif¢.

At all times during my investigation I acted in
good faith as I felt I was required to under the law and all
acts relevent to the cause of action were done in the course
of the execution of my official duties. I am not aware that
anything that I did in this case would be likely to violate
Plaintiff's civil rights nor am I aware that anything I did

resulted in violating the Plaintiff's constitutional or

A-40

civil a6

I have no il) willl towards the Plaintiff Stem
ané . ait » es conspire with anyone or any entity to deprive

\
stem of any ca consitiutional or civil rights.

DS Col Besse

Ralph fue

—_—

| ae

~ .

> Ye

-e-
-

ere rye

ree . oo

SuBsCRIBED AND SWORN. TO before me on the Bad day of

{
7 : 2 t
Dertomtere » 11988 to: “certify. "which witness my hand and
t i- th Je.
official; seal. t t--- t= ~*
t--- 2 a". - e-.- bu!
= t. 3 t —" es
ceed
Baek !)

wee’ ;
Notary Public
=
State- of Texas

-_—--
rower

ae

ANGEL! TA KR. S/IMENTAL

ee
Printed Name

=o

eae ;

Ei

‘

—- 1
My Commission Expires: 9/9 o/92

STOOD Io nats Se

4 Pee" r5 RENTAL
eT PS “ve Se teens
‘er oca aL 2300" aromas )

SEPT. 30, 1992 }

:

A-41

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

STEPHEN STEM, &
Plaintiff §
§
vs. § CIVIL ACTION NUMBER
§ H-88-2813
RALPH AHEARN, ET AL, .
Defendants §
AFFIDAVIT
THE STATE OF TEXAS &
COUNTY OF §

Before me, the undersigned authority, on this day
personally appeared Chris Card, known to me to be the person
whose name is subscribed hereto, and who, after being by me
duly sworn, upon his oath deposed and said:

"My name is Chris Card and I make this affidavit in
connection with the case styled Stem v. Ahearn, et al. I am
over 18 and mentally competent to make this affidavit with
personal knowledge of the facts stated therein, such facts
being true and correct.

In my previous position as the Children’s Protective
Services Supervisor of the Texas Department of Human
Services, I was responsible for overseeing all of the

Department’s child protective services cases in Unit 12 in

Page 1

A-42

the Harris County region. I was so employed from January,
1983 to February 29, 1988. My duties did not require me to
conduct investigations of child abuse complaints and I did
not conduct the investigation in the Sara Stem case. My
duties do require me to discuss Mr. Ahearn’s progress and
findings in the Sara Stem case with Mr. Ahearn andI_ did
that. Furthermore my duties do require me to approve or
disapprove a caseworker’s findings of abuse or/and neglect
and in this case I did concur with Mr. Ahearn’s
determination that Plaintiff did sexually abuse his
daughter, Sara Stem, and signed off on the caseworker’s fact
findings. I took no other action in this case.

I had no reason to believe that any action that I took
in the Sara Stem case would be likely to violate Plaintiff's
rights nor am I aware that anything that I did violated
Plaintiff’s rights. I have no ill will towards Plaintiff
Stem and I did not conspire with anyone or any entity to
deprive Plaintiff of any of his civil rights. All actions
that I took with regard to this case were done within the

scope of my duties and in good faith."

A-43

SWORN TO AND SUBSCRIBED before me this
ig BY-LAW MU, 2: PURPUSE
sd Ine Boer gnall be resporsidie for the protect ive services proyras for the
Fs 3?
3 cniloren of Harris County as expresseo in tne 1966 ayreenent betwen Harris
2]
5 County Comm ssioner’s agi ano the tenes. ae ot Public weitere (now
4
3 Texas Depertwent of "mn Kesources), ang avy ‘the 1978, heaorsnoun of
% —. ts as =.
; Ayreanent dewween horeis County Comm stoner’ s S Court, sand tne lexas
oil os
‘ Department of Human Resources. o- ar
; 4 be 4 wre ‘ ee
; ‘ . =: Pet cu
4 235 poe pr = ~*
BY-LAW NO. 3:5 MEETINGS ¥: is ‘est ae
—- - —--
y A. Ine rewler ‘eomatg y meet inys y of the Board will be neld on the fourtn
ces o~ gia
(atm) ‘Thur soay oe each sonth at 12:30 p.m, in the office of Harris County
4 ? 7 ase? : tte. t:.°2
a Catleren" & Protective Services or at Such time and place as may be
coer a
, oes imines by tne pours’? bres tent; — ~~ Fs:-

i b. te election. of of ficers snail take plece Rt the march Bosrc meeting.

=

. * = ee ¢* = Ls

C. Specie) = meet inys of me Board may be calles by the — or
j L = 2 =
'Vice-Presioent'at tne raquet of ony meander,

, + =

ox: \
0. Written net ice shal} be ferneins to each Boero oe ~ of the cate,

tive, and plece for al) Board meetings. worice of Boerd nosis srall be
yostec tor e: least 72 hours preceeding the Gey of tne meeting.

E. A quorum sna consist of the nuaber of Executive Coman ttee memoers plus
: 5 ‘st?

one. - » ose oe a8
ae mr mh PONE pe oe |

7. my Boers mwwer with tifty percent (50s) OF more unexcused absences
Me om oe -— -_-— - 7?

fro. reyules se7rMly metings of tre Rosrd auriny any consecutive twrive

;

‘12. RUNtM vert le oF tree (3) Consecutive unexcuseo arsences shel! ve

Ow! LO Rive Tob ignes as @ meer of tne Nerd,” an mexcused emerce 1s
' lp

Ve MUL vale) OY The Prestaent o° tne ruers.:

agen

—_—rd,mcmdmdl

A-48

Page “wo Vee
by-laws

AS Aoqyte renrwery 23, lyne

BY-LAW NU. 4: BSUARD UF DIRECTURS

A. The Boers shell nave sucn powers and autnority eno perfunn such autres
as shall be conterred on it by tne Harris County Conmssioner's Court ano
tne Texas Iepertnent of muman Kesources.

B. Ine Hoerc small consist of tifteen (15) memmers.

C. Board menders shall De apyornted by Harris County Comm ssioner's Court
for a term ot tnree (3) years. The terms of office of each Board mewme> so
selecteo sal! conmence on Jamary | of the year so cesiynateo by tne Harris
County Commssioner’s Court. Tne terms of tne toerd meanders shall ve
Stayyereo so that tne tens of no more tnan five (5) mempers of the board
shall end in any one year,

U. If @ vacancy snail occur on the Buara Dy reason of death, resiynation,
excessive aDsences (as per By-Law No. 3F) from Board meetings, or otherwise,
the Boarc snail request tne Harris County Commissioner's Court to appoint a
successor o- successors for the unespired tere or terms,

E. At tne eayiration of nis/ner tenes of office, any Boarc member mey de
re-appointed to the Board at the discretion of tne Harris County

Cormm ssioner’s Court.

F. Won ayyornunent by tne Harris County Comm ssioner’s Court new Board
members will craw lots to ascertain the emiration dates of their terns, if

necessary.

EV-LAR NU. cs: urFiCERS OF THE EUSRD

&. ne off crs of tne Yoarc snatl consist of Yresioent, Vice-Presicent,

Secretary, *' “reasurer,

4. Ihe offs se. ot tne Hoard shell ve electa: at tne Merch weeting dy an
attormwtive vf @ malority of tm Hoard aaters present. Each officer
sne!l!l serwe - me year and snel! te eliginie for re-election to tne sane
636° 109 %° edi. 10O78l COMte ut IWwe Ler. 0 person Shall be elected
retest rel @ZIOUNT HT Bie Breed wd 11s VOL Serves ur the snerce for

330 ast oor gear wor LO MVM lettin,

eS Oe es

te et

—_—

WEE eatin ea oie

Vase “Ne Wt tee

Cy-Lews

AS Aowles teurvary 23, IyHe

C. My ofticer may De renoved at any time hy an aftinnetive vote of =ne
majority of tne Boerc, Any vacancy Occurring Im any ottice of the Boerc
shall pe trlied by the Boera at tne next Board meetim. by an affirmative
vote of & majority of tne Boserd memmers present,

D. erly the Presioent, or tne Presigent’s Gesiynee, snall mare a pudlic
Statement on benalf of tne Boera, tne Presicent of tne Boero snail presice
at all meetings of -ne Boers, Tne Presioent snail be tne chief exewutive of
tne Boera, performny e)) guties Conmon'y incident to the office @no such
otner guties as tne Buaro sna)! GesSiynate frow time to time. The
ViCe-Prestoent snall be vested with all the powrs ang snel} perform al) of
tne Guties for tne Presigent in Case of tne adsence or Oisability of tne
President; in @0dition, tne Vice-Presicent sna!) have such powrs and
vertona sucn outies as the Board may fron time to time cetennine. The
Secretary snall be responsible for tne minutes of the Hoard, shal! perfora
all of tne duties Commonly incident to the of tice, anc snail perform such
otmer duties and nave such other powers @s tne Hoard shall cesiynate from
time to time, Tne Tressu:er snail Serve as Chair of Bucyet Comat ttee,
shall perform al] of tne Guties and nave such otner powers as the Boarc
shell desiynate fron time to time.

£. Ine officers of tne Board small nave autnority to Siym checrs written by

Warris County Cniloren’s Protective Services,

SY-LAR MU. ©: CUMMITTEES

Tne Bosero Lirin trees snail consist of an Executive Comer r ano such
STONOING Currvitiwas as may DE Gesiymated by tne Executive Coamttee.

&. Ime Executive Coman ztee COMSISCIMy Of the Presioen:, Vice-Presicent,

Secretary, “earturer, ang ony Other mermer as resimetes Dy the Presigenc

Stall meet .rt4ty 19 agvance oF the full sosrs owetim,, Me Executive
CON 2e wih oe CMaireg Py te ‘resident or nts Ustunee. The Ex-cut ‘we
of" MSLPO N89! Ceuta, FECMame Mc TONS 1F9) St aNdi my Comm Cleves and
OSL2DitS 8 ts enga tor werd mertiuys, Arties Of TRS tvecutive Crumtiee

WS° bbe o,,* . hy tte ward,

i

=e

A-50

tap 'Our * thd
By-Laws

As Atwte! reowary 23, Ind

3. [ees Lo tHe standing Comm ttees smell De appointed Dy tne President
annually 1% avryl. Cammttee Geir snall estadlisn treguency, Gey, time,
end place of Camm ile meetings, Committee reports shell be presented to
the buerd 4t 1.5 meeting. “ecamwngations for ections by the Boaro wil! be
presented to tne Executive Comm ttee,

C. Ad-HOC COrmELees as Necessary tron time to t me may De appointed by the
Presioent.

BY-LAW NU. >: STAFF

A. Ime Executive Director of Harris County Cniloren's Protective Services
1s employeo by tne Roerd, An annual contract 1% neyotiated each Auwst for
@ twelve montn period Deyinniny Septemper | and enciny August 3).
B. Responsivilities o° tne Executive Director include but are not limited
Lo the following:
1. AOm Mistration of expenditures of al! County Funds
2. The employment, supervision, and termination of a)) Boerd peic
em, | oyees
3. Coorciretion of local services witn tne Texas Deyarpnent of
Resusrces
&. Impieventation of ayency pruyrams tnrouyh supervision of Boer
starr
5. Interpretation of Board policy to tris staff
C. Tne Exececive Director will attend montniy meetings of the Board's
txes.tive Corn iiee ano tne full soara meeting anc will personally attend or
Reve @ Terese alive present at ine meetings of verious Cowittees of tne

goer.

as

Ui te Reatceucc ie eS i

8 Bo eter ei ATS ial

i nlibaKac ede

Pde

A-51

Poyr ive - ty
Hy -Laws

MEVISIUN Wout used Fenruery 23, bums

By-LAe NU. HK: FISCAL YEAw UF AGENCY

"me *18Cel yeer of Warris County Cnilaren’s Protective Services snel! be

Jemwary ist througn ieCemer Bist,

BY-the WO. Y: RULES UF UKUEK

Tne meetings of tne Boero snail! be Conducted accordimy to Roverte’ Rules of

Oroer, Revises,

BY-LAW NU. JU: AMENDMENTS TO BY-LAWS

Tnese By-Laws may be altered, amenaec, repealed, or replaced by @ majority
of tne entire Roero at any meeiiny calleo for tne purpose, provideo a
written notice of Chanyes proposed 1s yiven within thirty days of sucn

meeting wen saia chanyes are to de COMsloered siony with the notice of the

meeting.

A-52

AFFIDAVIT

THE STATE OF TEXAS

mow

COUNTY OF TRAVIS

Before me, the undersigned authority, on this day personally appeared

Marlin W. Johnston, who, being by me duly sworn, upon oath stated:

"I am over 2] years of age and am a resident of Travis County, Texas.

My office address is 701 West 5lst Street, Austin.

"I am the Commissioner of the Texas Department of Human Services, as
established by Texas Human Resources Code section 21.004. Pursuant to Texas
Human Resources Code section 21.005, I and previous Commissioners have
established divisions within the Texas Department of Human Services which
are necessary for the discharge of the Department's functions, and I have
employed personnel necessary for the administration of the Department's duties.
Furtner, I have established a system of local administration to carry out
the purposes of the Texas Human Resources Code, as set out in section 21.006

of that Code.

“One duty of the Department under the Human Resources Code is to “promote
the enforcement of all laws for the protection of illegitimate, dependent,
neglected, and delinquent children.” (H.R.C. section 41.001) And, Texas Family
Code Chapter 34 requires the Department to receive and investigate reports

of abuse and neglect to children.

"To carry out the duty to protect abused and neglected children, the

Department has established local offices throughout the State. Ralph Ahearn

D

A-53

and Chris Card were employees of the Texas Department of Human Services in
Houston at the time of the Department's investigation of child abuse perpetrated
by the Plaintiff, Stephen Stem. Ralph Ahearn's state merit system job title
was “Childrens Protective Services Specialist II"; Chris Card's state merit

system job title was “Childrens Protective Services Supervisor." As with

21) Department employees in these positions, all wages and other benefits

to these persons were provided solely by the State of Texas. The chain of

command to which they must report would be as follows:

Childrens Protective Services Specialist (caseworker)
reports to:

Childrens Protective Services Supervisor reports to:

Program Director for Protective Services to
Families and Children reports to:

Regional Director for Protective Services to
Families and Children reports to:

Regional Administrator, Region 11, Texas Department
of Human Services reports to:

Deputy Commissioner for Field Management reports to:

Executive Deputy Commissioner reports to:

Commissioner reports to:

Texas Department of Human Services Board

“As with all Department staff, Ralph Ahearn and Chris Card at all times

were subject to the supervision and direction of the Texas Department of Human

Services, and were never subject to the supervision or direction of any entity

Jen) Mega

Marlin W. Johest
Commissioner, ‘?Téxas Department of
Human Services

at the county or municipal level.”

A-54

SUBSCRIBED AND SWORN to before me by Marlin W. Johnston on this day,
the 7 SY tay of Dece mB5h . 1988.

otary Pu
Travis County, Texas

Beat: *
MY CORI. 2?
OCTCSEN 18.2554

A-55

§ 21.003 HUMAN RESOURCES DEPARTMENT Title 2
Historical Note
Prier Lew:
Acts 1939. 46th Lag... p. 44. Acts 1977. 65th Leg... p. 1871. ch. 643. § 1.

Actus 1941. 47th Leg., p. 914, ch. 562. § 1. Vernon's Ann.Civ.8t art 696c. §§ 211).
Acts 1943, 68th Leg. p. . eh. 287. § 1. (2), (3), 3¢2).

Cross References

Administrative Procedure and Texas Register Act, see Vernon's AnnCiv.Bt art
6252—13a.
Travel Regulations Act of 1959, see Vernon's Ann.Civ.8t art. 6823a.

Library References
Social Becurity and Public Welfare C6. C.J.8. Social Security and Public Welfare
States C267.

Speaker of House of Representatives him. by communication

wie @ Members of the Public Welfare Board

(new the Board of Human Resources) were

Action of Speaker of House of Represeni- not required to make bond. Op.Atty.Gen.
Stives in attempting to remove member of 1944. No. 60-5818.

§ 21.004. Commissioner

(a) The Commissioner of Human Resources is the executive and
administrative officer of the department. The commissioner exercis-
es al] rights, powers, and duties imposed or conferred by law on the
department unless the right, power, or duty is specifically delegated
by the board to the department's agents or employees.

(b) The commissioner is appointed by the board with the advice
and consent of two-thirds of the membership of the senate and serves
at the pleasure of the board.

(c) To be eligible for appointment as commissioner, a person
must be at least 85 years old, have been a resident citizen of Texas
for at least 10 years prior to the appointment, have had experience as
an executive or administrator, and not have served as an elected state
officer during the six-month period preceding the appointment.

Historical Note
Prier Law:
Acts 1938, 46th Leg. p. 644. Acts 1977, é$th Leg., p. 1371. ch. 543, § 1.

Acts 1941. 47th Leg.. p. 914. ch. 562. § 1. Vernon's AnnCiv.St art 686c. §§ 2())a.
Acts 1957, 5th Leg.. p. 237. ch. 114. § 1 3(1). (3).

14

A-56

Ch. 21 ADMINISTRATIVE PROVISIONS § 21.005

Library References

Social Security and Public Welfare @=5. C.J.8. Social Security and Public Welfare
States C=. 6. 7.
C.J.3. States §) 61, 80, 84. 162.

Notes of Decisions

In gererst 1 2 Powers
Powers 2 The executive directors of the Depart-
ment of Public Welfare (new the Depart-
—— ment of Human Resources) and the Urem-
ployment Compensation Comeiseion had no
1. Im generat Guthority to establish @ joint merit system
Former Vernon's Ann.Civ.St. art. 69¢ ‘ounetl. Op.Aity.Gen.1939, Ne. 6-1782.
was not rendered meaningiess on ground The executive director of the State De-
that the state department consisted ef partment of Public Welfare (new the De-
state board, the executive director and oll partment of Human Resources) had the ie-
the agents and representatives of the ée- ge! right and authority te transfer funds
Derument. since ail duties of the éepart- out of the revolving fund in ene district to
ment. uniess otherwise provided. were dele- the revolving fund in another @istrict under
gated to the executive director te whom the provisions of | 7-A ef former Vernon's
the appeal should be made. Twiss v. Royle Ann.Clv.St. art 88h¢ (eee, now, §§ 33.002 te
(Civ. App.1944) 179 S.W.20 579. 33.0180). Op. Atty.Gen.1987, Ne. WW-129.

(b) The commissioner may allocate and reallocate functions
among the divisions.

(c) The commissioner may employ personne! necessary for the
administration of the department's duties.

Historical Note
Prier Law:
Acts 1939. 46th Leg.. p. $44. Acts 1969. let Len.. p. 2528. eh. 846, § 2.
Acts 1941, 47th Leg. p. 914. ch. 562. § 1. Vernon's Ann.Civ.St. art 69$c. § &.
Library References

Social Security and Public Welfare @>5. C.J.8. Social Security and Public Welfare
5. 6. 7.
C.J.S. States $f 79, 80, 82. 196.

Notes ef Decisions

A-57

§ 21.006 HUMAN RESOURCES DEPARTMENT Title 2

§ 21.006. Loca! Administration

(a) The department shall establish a system of jocal administra-

tion and employ personnel necessary to carry out the purposes of this
title in an economica! manner.

(b) The commissioner may provide for the appointment of local
boards to advise the local administrative units. The commissioner
shall determine the size of the boards and the qualifications of the
members. The functions of the boards may not conflict with or du-
plicate the functions of other boards authorized by law to advise the

Historical Note
Prier Law:
Acts 1939, 46th Leg. p. 544. Acts 1963, 68th Leg.. p. 700. ch. 357, § 1.
Actw 1941, 47th Leg... p. 014. eh. 662. § Acts 1969. Glet Leg... p. 2526. ch 845. § 1
Acts 1961, Bnd Leg. p. 686. ch. 342, § Vernon's Aan.Civ.8t. art. 69b<, § 4(7).

1. Construction ang application with counties for the purpose ef carrying
Sections 4. 1. 1-A and 38 of former Ver- out the {food stamp program avtho-
pon's Ann.Civ.Bt. art 69ic (see. now. §) rized and required to be administered by
11.003, 22.001, 22.002. 33.001 to 33.010, and the department and the counties were av-

this section) authorised the State Depart- thorized to expend county funds for the
= 2? ee Purpose of providing such facilities. Op.
ment of Human R to Atty.Gen.1971, No. M-#12.

§ 21.007. Mertt System

agencies that are required by federal law to operate under a merit
systern.

Revisor's Note

The source law section also contains the following provisions re-
lating to the merit system which are omitted from the revised law:

The Social Security Board shal) exercise no authority
with respect to the selection, tenure of office, and com-
pensation of any individual employed in accordance with
such methods.

It is further provided that if any Merit Council is set
up under authority of this Act the members and the exec-
utive head thereof shall be appointed subject to the con-
firmation of two thirds of the Senate.

(11) The Council shall provide for a preference in ev-
ery State Department in this State (under which the
Council has supervision) to all honorably discharged sol-

i6

A-58

Ch. 41 CHILD WELFARE SERVICES § 41.001

SUBCHAPTER A. GENERAL WELFARE SERVICES

Section 41.001. Duties of Department

(a) The department shall promote the enforcement of all laws for
the protection of illegitimate, dependent, neglected, and delinquent
children, and shall take the initiative in all matters involving the in-
terests of these children where adequate provision for them has not
already been made.

(b) The department shall give special attention to the dissemina-
tion of information through bulletins and visits, where practical, to
all agencies operating under a provision of law affecting the welfare
of these children.

(ce) Through the county child welfare boards, the department
shall work in conjunction with the commissioners courts, juvenile
boards, and all other officers and agencies involved in the protection
of these children. The department may use and allot funds for the
establishment and maintenance of homes, schools, and institutions for
the care, protection, education, and training of these children in con-
junction with a juvenile board, a county or city board, or any other
agency. However, the funds must be specifically appropriated by the

for this purpose.

(d) The department shail visit and study the conditions in state-
Supported eleemosynary institutions for these children and shall make
recommendations for the management and operation of the institu-
tions which will ensure that the children receive the best possible
iarnin® in contemplation of their eartiest discharge from *he institu-

(e) The department may not spend state funds to accomplish the
Purposes of this chapter unless the funds have been specifically ap-
Propriated for those purposes.

77

$
7
P
Ss

A-59

No. 86-25393

IN THE MATTER OF THE $ IN THE DISTRICT COUKT OF
MARRIAGE OF

LEE ANNE STEM

and y HARRIS COUNTY, TEXAS
STEPHEN C. STEM

AND IN THE INTEREST OF

SARAH ELIZABETH STEM and

STEPHEN CHARLES STEM, JR.

MINOR CHILDREN . 247TH JUDICIAL DISTRICT

COURT ORDERED TEMPORARY ORDERS

On September 9, 1986 and on January 16, 1987 the Court
considered the application ot the Petitioner for temporary
reliet. The Petitioner, appeared in person and by attorney
and announced riady tor trial on both occasions. Respondent
appeared in person and by attorney and announcec ready for
trial on both occasions. The Guardian ad litem tor the
chilagren also appeared on both occasions and announcea ready
for trial.

The Court after considering the pleadings on file and
all the evidence enters the tollowing temporary orders:

IT 1S ORDERED AND DECREED chat LEE ANNE STEM is hereby
appointed the Temporary Managing Conservator ot both of the
children of the marriage , SARAH ELIZABETH STEM and STEPHEN
CHAKLES STEM, JR. pending the final resolution of this divorce
action,

IT IS ORDERED AND DECREED that the Temporary Managing
Conservator shall have all the powers, privileges and duties
of a parent, to che exclusion of the other parent, subject
to the rights, privileges and duties granted to any Temporary

Possessory Conservator namea in this Order.

A-60

IT 1S ORDERED, ADJUDGED AND DECREED that STEPHEN C. STEM
is hereby appointed Temporary Possessory Conservator of both
ot the children, SARAH ELIZABETH STEM AND STEPHEN CHARLES
STEM, JR., until final resolution of this divorce action.

IT IS ORDERED that the Temporary Possessory Conservator
shall have all the rights, privileges and duties of the
Temporary Possessory Conservator as set forth in the Texas
Family Code.

IT IS FURTHER ORDERED AND DECREED by the Court that the
Temporary Possessory Conservator shall have access to the
children as tollows:

l. Om the first, third and fifth Saturday ot each

month trom 10:00 a.m. until 5:00 p.m. on the Sunday

following each such tirst, third ano titth Saturday.

2. At such other times as may be agreeo upon between the
parties.

IT 1S ORDERED that the Temporary Possessory Conservator
shall return both the children, on time, to the Temporary Man-
aging Conservator at her place of residence, immediately
tollowing each period of access or possession.

IT 1S FURTHER ORDERED AND DECREED that the Temporary
Managing Conservator shall surrender the children, on time, to
the Temporary Possessory Conservator at her place of residence
at the beginning of each period of possession.

IT IS FURTHER ORDERED that each party shall file a Sworn
Inventory and Appraisement ot all community and separate
estate within titty (50) days of the date or this Order.

IT IS FURTHER ORDERED AND DECREED by the Court that
STEPHEN C. STEM shall pay child supporc to LEE ANNE STEM in
the amount of EIGHT HUNDRED AND NO/10U0 DOLLARS ($800.00)

o2-

7
t
'

A-61

per month, payable to her at her place of residence each
month at 3827 Redwood Falls, Houston, Texas 77082. Said
child support shall be payable FOUR HUNDRED AND NO/100
($400.00) DOLLARS due on the Ist day of each month and FOUR
HUNDRED AND NO/100 (S$400.0U) due on the 15th day ot each
month with the tirst payment being due ana payable on February
1, 1987.

IT 1S FURTHER ORDERED AND DECREED by the Court that each —
child support payment above enumerated shall be paid by check
drawn on an account with sufficient funos to pay for the
check, check drawn on or betore the Ist day of each month and
the 15th day of each month and postmarked by the Ist dav of
each month ano che 15th day ot each month respectively.

IT IS FURTHER ORDEKED AND DECREED by che Court that
STEPHEN C. STEM shall pay as additional child support the sum
of FOUR HUNDRED AND NO/1U0 ($400.00) DOLLARS PER MONTH on
January 17, 1987. It is ORDERED that a check be written on
an account with sufficient funas to cover the sum of $400.00
and that said check be postmarkea by January 17, 1987 and
mailea to Petitioner, LEE ANNE STEM at her place of residence
above named.

IT IS FURTHER ORDERED AND DECREED by the Court chat
Respongent, STEPHEN C. STEM shall pay temporary alimony
to LEE ANNE STEM in the sum ort THREE HUNDRED AND NU/100
DOLLARS ($300.U0) per month. Said Temporary Alimony shall
be paid ONE HUNDKED FIFTY AND NO/100 ($150.00) DOLLARS on
the tirst day of each month and ONE HUNDRED FIFTY AND NO/100
DOLLARS ($150.00) on the 15th day of each nonth with the
first payment being due and payable on February 1, 1987.

se

A-62

IT IS FURTHER ORDERED AND DECREED by the Court that each
alimony payment above enumerated shall be paid by check drawn
on an account with suttficient funds to pay tor the check, the
check drawn on or before the ist day of each month and the
15th day of each month and postmarked and mailed to Petitioner's
residence by the let day of each month and the 15th day ot
each month respectively.

IT 1S FURTHER ORDERED AND DECREED by che Court that each
party shall have temporary use and possession of the real
estate which they currently occupy and the automobile that
they currently possess.

1T IS FURTHER ORDERED AND DECREED by the Court that each
party shall immediately be enjoineo trom doing any of the
acts set torth in Petitioner's First Amended Original Petition
for divorce riled in this cause, said provisions are incorpor-
ated by reterence into these Temporary Orders. The Court
finds that good cause exists tor the issuance of the Temporary
Injunctions and that irreparable harm or injury would occur
without the granting of these Temporary Orders and that a
bond should be dispensed with.

IT IS FURTHER ORDERED AND DECREED by the Court that the
only exceptions to the Temporary Orders as requested would be
the borrowing of or the transter of funds trom Respondent's
Pay Deferral Account ac Shelli in compliance with che cerms
of this Order.

IT IS FURTHER ORDERED AND DECREED by che Courc that

Respondent shall pay as additional temporary alimony, the sum

of SIXTY FIVE HUNDRED AND NO/100 ($6,500.00) DOLLARS to LEE

A-63

ANNE STEM out ot which FIVE THOUSAND AND NO/100 ($5,000.00)
shall be used to pay her attorney's tees.

IT 1S ORDERED AND DECREED by the Court chat the Kesponaent
shall use whatever means in his discretion that are necessary
to obtain said $6,500.0U.

IT IS ORDERED that Respondent shall consider borrowing
the tunds trom a lending institution, borrowing the tunoas
trom Respondent's pay deferral account or using any other
means necessary to obtain the funos.

The Court does ORDER that this sum ot $6,500.0U shall be
r.id cto LEE ANNE STEM at her place of residence by 5:UU p.m.
on February 2U, 1987, said funds to be obtained from any
source and whatever source is available to the Responcentc.

lc is further ORDERED that the remaining FIFTEEN HUNDRED
AND NO/100 ($1,500.00) DOLLARS of the $6,500.00 received by
Mrs. Stem shall be used in whole or in part to repair the
Gamage to the residence in which Mrs. Stem currently resides.

IT 1S FURTHER ORDERED AND DECREED by the Court that if the
joinder otf LEE ANNE STEM is required to withdraw tunas trom
the Pay Deferral account that Mrs. Stem is hereby ordered to
sign any necessary rorms to consent to the withdrawal of che
tunds, within five days atter requested to do so.

IT 1S FURTHE® ORDERED AND DECREED by tiie Court that
STEPHEN C. STEM shall pay on or before 5:0U p.m. on February

20, 1987 the sum ot ot TWENTY FIVE HUNDRED AND NO/10U ($2,500.

DOLLARS to the Guardian ad Litem, ANNE H. RECIO. Saic sum
shall be paid to ANNE HK. KECIO at her business adaress, 5009

Caroline, Houston, Texas 77004 by said date.

o5-

00)

A-64

IT 1S FURTHER ORDERED AND DECREED by the Court that Responoent
shall use whatever means in his discretion that are necessary
to obtain said $2,500.00. IT 1S ORDERED that Respondent
shall consider borrowing the tunds from a lending institution,
borrowing the funds trom Responocent's pay deferral account
or using means necessary to obtain the tunds. The Court
does ORDER that the sum of $2,500.00 be paid to the Guardian
ad Litem and that said tunds be obtained from any source and
whatever source is available to the Respondent.

IT IS FURTHER ORDERED that the said Anne H. Recio shail
Geposit said sum in her trust account and keep a due and
correct accounting and disbursement ot all funds.

IT 1S ORDERED that upon consent of tne attornevs of recora
that all sums earnea can be withdrawn trom the trust account
without the consent of the Court; the consent of the Court
only being necessary in the event the respective attorneys
do not agree with the accounting submitted by the Guardian
ac litem.

IT 1S FURTHER ORDEKED AND DECREED by the Court chat
Respondent, STEPHEN C. STEM, as an additional part ot che
child support award contained in these Temporary Orders,
shall maintain in force an insurance policy providing major
medical and hospitalization coverage tor the minor children
of the parties.

The Respondent is ORDERED to furnish to Petitioner proof
of coverage within tirteen (15) days tollowing che signing of
these temporary orders. Respondent is also ORDERED co turnish
to Petitioner a copy of any renewals or changes of said
insurance coverage within ten (10) days ot receipt or the

whe

A-65

change in coverage or other provisions of tchis policy.
Kesponcent is ORDERED to furnish Petitioner within cen (10)
days after written request from her any proof of loss forms
necessary to atfect and make a claim tor medical and hospi-
talization benefits, and Respondent is ordered to complete
and sign the proot ot loss forms within (10) ten days atter
returned to him. Respondent is turther ORDERED to forward
the proot ot loss torms within tive (5) days atter his receipt,
completion and signing of it to the insurance company tor
prompt paymet. Respondent is turther ORDERED to endorse any
insurance proceeaos checks received by him within tive (5)
days of his receipt and he is further ordered within tive (5)
days, to forward said endorsed check to the Petitioner at the
location where he picks up the children for visitation or the
last know acgoress or the Petitioner. It is further ORDERED
that in addition and cumulative to the above the Kesponagent
is designated as the constructive trustee to receive any
insurance payments and forward them to the Petitioner as is
above specified. -

All these Temporary Orders shall remain in effect until

modified or until rinal resolution ot this divorce.

SIGNED AND ENTERED on chis th
1987.

APPROVED AS TO FORM:
MICHAEL TOOMEY, “INCORPORATED,

ara
S gal
BY: =
Bar Card No. 20132001
4600 Highway 6 North, #210

Houston, Texas 77084
463-3566

A-66

1 deva sew Tus CRO™ Fae Te a
APPROVED-AS-TO-FORM: / 75 EMT4*7 NY 7Tve <O~

Pe te Pe eS
JOE K- GRUBB, Attorney —
3D/International Tower, #850
19U0 West Loop South at San Felipe
Houston, Texas 77027 ?é/-S5)3

/

7) tf
¢ Care f Lal “ a ae

ANNE HARLAND RECIO
Guardian ao Litem
5009 Caroline
Houston, Texas 77004
TB# 16649300

520-8620

A-67

D STATES pisT
SOUTHERN DisTmeT OF 16
UNITED STATES DISTRICT COURT NTERED
SOUTHERN CISTRICT OF TEXAS

HOUSTON DIVISION ‘JUL 31 1989
Jesse E. Clark. Clerk
STEPHEN STEM, F By Deputy: ven
& , ss
Plaintiff, §
&
vs. § CIVIL ACTION NO. H-88-2813
&
RALPH AHEARN, et al., §
g
Defendants. §
ORDER
1. ‘his case jis restyled: Stem _v. Ahearn, Card, und
Aarxis County Children’s Protective Service, an operaticn of the
Texas vepzrtment of Human Services.
2. Harris County and the Board of Harris Tounty

Children’s Protective Service are dismissec.

3. The remaining motions for summary judgment are denied
without prejudice.

4. Stem takes nothing by his claim under 42 U.S.C.
§ 1985.

5. The State shall produce all documents and answer

interrogatories by August 4, 1989.

Signed on July ZC , 1989, at Houston, Texas.

United States Distfict Judge

Appendix "Cc" -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3316%3A2. Public record. Not legal advice.