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Shupe v. Baur

United States District Court, E.D. North Carolina, Southern Division

May 11, 2015

JASON SHUPE, CHRISTY SHUPE, N. SHUPE, minor, and M. SHUPE, minor Plaintiffs,
v.
HEIDI BAUR, KIM BAILEY, and KIM WINSTON, Defendants.

ORDER

JAMES C. FOX, Senior District Judge.

This matter is before the court on the Defendants' Motion for Summary Judgment [D27]. Pro se Plaintiffs Jason Shupe and Christy Shupe have filed a response, and the time for filing a reply has passed. For the reasons stated below, the Motion for Summary Judgment [D27] is ALLOWED.

I. PROCEDURAL BACKGROUND

Plaintiffs initiated this action by filing a complaint [DE-1] in this court, asserting claims on behalf of the themselves and their two minor daughters. The claims arise out of the temporary removal of the daughters from Christy Shupe's custody due to alleged child abuse and neglect and the order that Jason Shupe have no contact whatsoever with his daughters. Plaintiffs name as Defendants Heidi Baur, the Director of Onslow County Department of Social Services, Kim Bailey, an In Home Services Supervisor for the Child Protective Services Unit of the Onslow County Department of Social Services, and Kim Winston, a Program Manager of the Child Protective Services Unit of the Onslow County Department of Social Services. Plaintiffs appear to be asserting claims pursuant to 42 U.S.C. § 1983 for violation of their Fourth and Fourteenth Amendment rights and for alienation of affection under North Carolina law. Plaintiffs also reference a number of North Carolina statutes.

Defendants moved to dismiss the claims of the minor Plaintiffs, and the court allowed the motion in an order filed on September 30, 2014 [DE-15]. Defendants now move for summary judgment on the claims asserted against them.

II. FACTUAL BACKGROUND

Plaintiffs Jason and Christy Shupe are a married couple. Baur Aff. [DE-27-1] ¶ 5. Defendants contend that on or around March 7, 2011, Plaintiff's minor child, M.S., disclosed that her father, Jason Shupe, touched her inappropriately. Id. ¶ 6. At the time, Jason Shupe had pending criminal charges of felony indecent liberties with a minor; contributing to the delinquency of a minor; misdemeanor resisting a public officer; soliciting a child by computer; and misdemeanor soliciting crimes against nature involving an unrelated minor child. Id. ¶ 6, Ex. A (Juvenile Petition). Plaintiffs' other biological minor child, N.S., resided in the home during the time that M.S. disclosed the inappropriate sexual contact with her father. Id. ¶ 6.

Based on the allegations of sexual abuse, the Onslow County Department of Social Services instituted a safety assessment under which Jason Shupe was to leave the home he shared with Christy Shupe and have no contact with the minor children, pending the conclusion of the Child Protective Services investigation. Id. ¶ 7; see also Safety Assessment [DE-35-1]. Defendants contend that on or around April 11, 2011, both Jason and Christy violated the safety assessment because Christy allowed her husband to have contact with the minor children. Baur Aff. [DE-27-1] ¶ 8. Although both Christy and Jason have submitted affidavits stating that they "have cooperated with the defendants at all stages to the best of my ability, " they do not submit any evidence showing that Defendants did not have reason to believe they violated the safety assessment. See C. Shupe Aff. [DE-36] p. 1, ¶ 4; J. Shupe Aff. [DE-36] p. 1, ¶ 4.

Defendants contend that the minor children were then placed out of the home on April 11, 2011, and were residing with a family friend of the Shupes until June 10, 2011. Baur Aff. [DE-27-1] 8. Defendants assert that on June 16, 2011, the family friend notified the Department of Social Services that Christy removed the minor children from the placement. Id. ¶ 9. Defendants also contend that Jason and Christy refused to disclose the location of the minor children. Id. Via unworn statements, Jason and Christy contend, however, that Kim Bailey and the social worker assigned to the investigation, Lena Simpson (who is not named as a defendant) "[k]new at all times where the minor children were...." Pls. Opp. to Mot. for Summ. J. [D35] at 1.

On June 17, 2011, Lena Simpson filed a Juvenile Petition with the Onslow County District Court. Id. ¶ 10, Ex. A (Juvenile Petition). In an affidavit attached to the Juvenile Petition, Simpson averred that (1) M.S. disclosed that Jason had on more than one occasion touched her vaginal area or made her touch his penis; (2) Jason's pending criminal charges, including soliciting a child by computer; (3) that another juvenile, N.S., resided in the home when M.S. disclosed the inappropriate contact; (4) Christy and Jason denied the allegations made by M.S.; (5) the terms of the safety assessment, and the Shupes' violation of the safety assessment; (6) the placement of the children with a family friend; (7) Christy's removal of the children on June 10, 2011, and (8) the Shupes' refusal to disclose the location of the children. See Baur Aff. [DE-27-1], Ex. A (Juvenile Petition and Aff.). The affidavit requested, inter alia, that court adjudicate M.S. as abused and neglected and N.S. as neglected, grant full custody of the children to Onslow County Department of Social Services, and require Christy and Jason to disclose the location of the children. Id.

Magistrate Judge T. Wade Home signed the Order for Nonsecure Custody on June 17, 2011, finding that the minor children were exposed to a substantial risk of physical injury and/or sexual abuse. Baur Aff. [DE-27-1] ¶ 11, Ex. B (Order for Nonsecure Custody). This order placed the children into the nonsecure custody of the Onslow County Department of Social Services. Id.

Three days later, on June 20, 2011, Presiding Judge Sarah C. Seaton held a hearing to determine the need for the continued nonsecure custody of the Plaintiffs' minor children. Baur Aff. [DE-27-1] ¶ 12. Both Shupes attended the hearing and were represented by separate counsel. An order issued by Judge Seaton found as a fact that the Shupes initially refused to give the location of the children, but told the court at the hearing that the minor children were residing in Twin Peaks, California. Baur Aff. [DE-27-1] Ex. C (July 12, 2011 Order). The court found that the best interests of the minor children would be served by continuing custody with the Onslow County Department of Social Services. Id. The court also ordered the return of the minor children to Onslow County, North Carolina for placement in the discretion of the Department of Social Services. Id.

On August 15, 2011, Presiding Judge James L. Moore, Jr., held an adjudication hearing on the Juvenile Petition alleging that minor child, M.S., was abused and neglected and alleging that minor child, N.S., was neglected. Baur Aff. [DE-27-1] ¶ 13. The Onslow County Department of Social Services proceeded only on the issue of neglect with regard to the two children, and did not proceed on the issue of abuse of M.S. See Baur Aff. [DE-27-1], Ex. C (Sept. 2, 2011 Juvenile Adjudication and Disposition Order). Social Worker Lena Simpson testified at the adjudication hearing. Id. Jason and Christy, through their attorneys, did not contest the adjudication and offered no evidence at the hearing. Id. Judge Moore found as fact that Jason had not completed any of the activities that were recommended by the Onslow County Department of Social Services. Id. Judge Moore also found as fact that Jason stated that his attorney advised him not to complete the psychosexual assessment or the psychological assessment as recommended by the Department of Social Services. Id Judge Moore adjudicated the minor children neglected, and grated legal custody of the children to the Onslow County Department of Social Services. He ordered, however, that the children be placed with Christy. He also ordered that Jason "have no contact whatsoever, whether direct or indirect, with ...


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