Sweeney v. Specia, Jr.

MOTION for Summary Judgment and Brief in Support

W.D. Tex.October 4, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION MARY SWEENEY, § § Plaintiff, § § CASE NO. 1:15-cv-00474-RP v. § § JOHN J. SPECIA, JR., § Defendant. § DEFENDANT JOHN J. SPECIA, JR.’S MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT TO THE HONORABLE JUDGE ROBERT PITTMAN, UNITED STATES DISTRICT JUDGE: Defendant, John J. Specia, Jr., sued in his official capacity as Director of the Texas Department of Family and Protective Services,1 (hereinafter “Defendant”), files his Motion for Summary Judgment and Brief in Support2 pursuant to Federal Rule of Civil Procedure 56 and in support thereof, respectfully shows the Court as follows: I. NATURE AND STAGE OF PROCEEDINGS Plaintiff, Mary Sweeney (“Ms. Sweeney”) filed this lawsuit alleging Defendant violated Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”) and § 504 of the Rehabilitation Act, 29 U.S.C.A. § 791, et seq. (“Rehab Act”). She has purportedly been diagnosed with a seizure disorder. [DKT 15 at para. 10]. Ms. Sweeney claims Defendant 1 Ms. Sweeney named John Specia in his official capacity as Commissioner of DFPS; however, Mr. Specia has since left this position. Henry L. Whitman, Jr. now serves as the Commissioner of DFPS. 2 Except for Exhibits #4, #14, and #15, the exhibits referenced in this pleading are filed separately as the subjects of Defendant’s Motion For Leave to File Certain Documents Under Seal. 1 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 1 of 20 discriminated against her and refused to reasonably accommodate her when Defendant removed and failed to return her minor child (“ALH”). In November 2012 - after first obtaining a court order authorizing it to do so3 - Defendant removed ALH from the home she shared with Ms. Sweeney and the child's biological father, Joshua Hill and assumed conservatorship of ALH. The removal followed an investigation by Child Protective Services (CPS) that substantiated reports of domestic violence and drug use by ALH’s parents. See Exhibit 1 at DFPS 0002-3. Before ordering the immediate removal of ALH, the Court found that ALH was in immediate danger “…and that continuation in the home would be contrary to the child’s welfare…” Subsequent court orders contained the same findings and prohibited the return of ALH to her parents until they met certain court-ordered conditions. Sadly, ALH died before returning to Ms. Sweeney’s custody. Ms. Sweeney originally filed her state court petition in the 277th Judicial District Court of Williamson County on May 4, 2015 which Defendant answered on May 28, 2015. Defendant removed the case to federal court on June 3, 2015 [DKT 1] and on April 8, 2016, Ms. Sweeney filed her First Amended Complaint and Jury Demand. [DKT 15]. Ms. Sweeney seeks compensatory damages and attorney’s fees and costs. Id. II. SUMMARY OF ARGUMENT Defendant is entitled to judgment as a matter of law on Ms. Sweeney’s claims for disability discrimination brought under the ADA and the Rehab Act because (1) her claims are barred by the statute of limitations; (2) she lacks standing because she cannot establish the required causal connection between Defendant's actions or inactions and her alleged injury; (3) 3 On November 27, 2012, the County Court at Law Number One of Williamson County, Texas issued an Order for Protection of a Child in an Emergency and Notice of Hearing in Cause No. 12-0099-CPS1 on November 27, 2012. 2 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 2 of 20 she cannot make out a prima facie case under the ADA or the Rehab Act; and (4) she cannot rebut Defendant’s legitimate, non-discriminatory reasons for petitioning for the removal of ALH and his recommendation that the child not yet be returned to Ms. Sweeney's home and custody. There is no question of material fact regarding the reasons ALH was removed because there is no evidence in the record that Defendant would not have petitioned for ALH’s removal, or would have requested that ALH be returned sooner, “but for” Ms. Sweeney’s alleged disability. Further, there is no evidence in the record that Ms. Sweeney’s alleged disability was a motivating factor in the removal of ALH. In fact, ALH was removed from Ms. Sweeney’s home and custody, pursuant to court order, to protect ALH from reported and anticipated domestic violence and drug use within Ms. Sweeney’s home. As explained below, the record evidence shows that Defendant did not discriminate against Ms. Sweeney because of her alleged disability; rather, Defendant’s actions were court-ordered and based upon legitimate, non- discriminatory factors that did not pertain to Ms. Sweeney's purported seizure disorder. III. STATEMENT OF FACTS On or around November 1, 2012 DFPS received a report (also known as a referral), that ALH's father, Joshua Hill, had tried to leave the home with the child but Ms. Sweeney would not permit him to do so. Mr. Hill indicated that a doctor had instructed that Ms. Sweeney was not allowed to supervise ALH alone because of Ms. Sweeney's seizures. Police had been called to the scene. Trina Fowler was the CPS investigator who was assigned to handle this referral. In her investigation report, Ms. Fowler documented having staffed the referral with her supervisor, Linsay Tomlinson, in order to assign it a "priority none" (PN) meaning that the matter would not See Exhibit 6. 3 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 3 of 20 be investigated. See Exhibit 1 at DFPS 0001 and 0013; Exhibit 14 at 28:1-4. Program Director Patricia Villafana-Nunes approved closing the referral without investigation. Id. Another referral was received the next day, this time regarding an argument between the parents wherein Mr. Hill was purportedly high on marijuana, almost dropped the child while fighting with Ms. Sweeney and trying to take the child away. See Exhibit 1 at DFPS 0002. Once again, police were called to intervene. See Exhibit 2 at p. 755 and Exhibit 4 at p. 27:12-p. 29:5. At that time, Ms. Sweeney feared for her life and the safety of ALH. Id. Ms. Sweeney was afraid of Mr. Hill and feared for her safety as well as the safety of ALH. See Exhibit 4 at p. 27:12-p. 29:5; p. 31:13-17; p. 32:14-18; p. 38:23-p. 39:8; p. 123:19-24. Trina Fowler was assigned to investigate the subsequent referral. She interviewed Mr. Hill, ALH's aunt (Mr. Hill’s sister), and Ms. Sweeney on November 2, 2012. See Exhibit 2 at pp. 753-755. During these interviews, Ms. Fowler learned that Mr. Hill had a drug problem and that he kept drug paraphernalia around the home. Id. During her interview with Ms. Fowler, Ms. Sweeney admitted that she too used drugs; indeed, she had smoked marijuana a mere four days earlier. Id. at pp. 753; see also Exhibit 3. Ms. Sweeney also admitted that both she and Mr. Hill had smoked marijuana in front of ALH and that she had a file with CPS in Florida because she tested positive for (non-prescribed) Xanax during her pregnancy with ALH. See Exhibit 2 at pp. 753-754; see also Exhibit 4 at p. 26:23-p. 27:10. Ms. Fowler determined that the parents' drug use as well as domestic violence between the couple put the child's safety at risk. As Mr. Hill had indicated he was moving to Lexington, Texas to live with his parents (Exhibit 2 p. 754) - and in an effort to avoid placing the child in foster care - Ms. Fowler created a Safety Plan under which Mr. Hill's mother (Diann Hill) would supervise all contact between the parents and the child. See Exhibit 5 and Exhibit 2 at p. 756. 4 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 4 of 20 Both Ms. Sweeney and Mr. Hill agreed with the contents of the Safety Plan. See Exhibit 2 at p. 756; see also Exhibit 5. Moreover, the Safety Plan notified the parents that ALH could be removed if they did not stop using illegal drugs; a condition that Ms. Sweeney understood when she approved the Safety Plan. See Exhibit 4 at p. 42:7-p. 43:1; Exhibit 5. Both parents agreed to undertake individual therapy, couple's counseling, parenting classes, drug and alcohol assessments and random drug testing. See Exhibit 2 at 757. The CPS case was transferred from Williamson County to Lee County as ALH was going to be living in Lexington. See Exhibit 2 at p. 756. On November 9, 2012, ALH’s father tested positive for marijuana. Id. On November 15, 2012, a Family Team Meeting was held which Ms. Sweeney, Mr. Hill and Ms. Diann Hill attended. Id. CPS learned that Mr. Hill had never moved to his parents’ home and, in fact, Mr. Hill and Ms. Sweeney were still living together in Austin with Ms. Diann Hill being the child's sole caretaker in Lexington. Id. Again, both Mr. Hill and Ms. Sweeney admitted that they had used marijuana in the home where they lived with ALH and Mr. Hill admitted to having anger issues. Id. at p. 757. On November 26, 2012, Ms. Fowler spoke with Ms. Diann Hill and informed her that her home was not a suitable placement for ALH because her husband was a registered sex offender. See Exhibit 2 at p. 758. Ms. Hill stated that she would not remove her husband from her home. Id. With no alternative placement options available, Ms. Fowler informed Mr. Hill that the Defendant would seek court intervention for the removal and placement of ALH due to serious safety concerns. Id. at pp. 758-759. On November 27, 2012, the Assistant County Attorney for Williamson County filed a First Amended Petition For Protection of a Child, For Conservatorship, and For Termination In 5 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 5 of 20 Suit Affecting The Parent-Child Relationship in the County Court at Law Number One of Williamson County, Texas. See Exhibit 2. In that petition, CPS sought an ex parte order for authority to remove the child prior to effectuating the removal. After examining the pleadings and the evidence, the County Court found that ALH was in immediate danger or the victim of neglect and that “continuation in the home would be contrary to the child’s welfare;…”, and issued an Order for Protection naming DFPS the temporary sole managing conservator of ALH until a full adversary hearing could be held on December 5, 2012. See Exhibit 6. After the full adversary hearing on December 5, 2012, The County Court issued a Temporary Order which included findings that ALH was in danger and that the urgent need for protection required ALH’s immediate removal from Ms. Sweeney and Mr. Hill. See Exhibit 7 at p. 779. The County Court’s Temporary Order also included a significant list of conditions that Ms. Sweeney needed to meet before ALH could be returned to Ms. Sweeney’s home. Id. at p. 781. Ms. Sweeney was permitted to have supervised visitation with ALH once a week for one hour. Id. at p. 785. On January 23, 2013 The County Court held a Status Hearing and issued an order accepting the Family Service Plan created for Ms. Sweeney and Mr. Hill. See Exhibit 8; see also Exhibit 9 at pp. 637, 638, and 641. The County Court found that Ms. Sweeney understood the service plan and, moreover, understood that her parental and custodial duties and rights could be subject to restriction unless she could provide a safe environment for ALH by completing the tasks and services listed in the Family Service Plan. Id. The County Court set an Initial Permanency Hearing for April 25, 2013. See Exhibit 8 at p. DFPS0244. On April 25, 2013, The County Court held an Initial Permanency Hearing and found that although Ms. Sweeney and Mr. Hill were engaging in their service plans, they had not yet 6 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 6 of 20 completed all of the tasks and services set forth in their service plans and were not in a position to provide ALH a safe environment. Therefore, ALH continued to need substitute care. See Exhibit 10. The County Court set a Permanency Hearing for July 11, 2013. Id. Although the laboratory drug test results had yet to be reported, Ms. Sweeney tested positive for marijuana from a specimen collected on April 24, 2013—a violation of her service plan and the court's orders. See Exhibits 5, 9, and 12. On July 11, 2013, the County Court held a Permanency Hearing and—with knowledge of Ms. Sweeney’s positive drug test—again found that Ms. Sweeney and Mr. Hill were not in a position to provide a safe environment for ALH and the need for substitute care still existed. See Exhibit 11 at pp. 838; see also Exhibit 13 at p.8:21-p.9:3, p.12:20-p.13:5.4 The County Court ordered that DFPS continue as ALH’s Temporary Managing Conservator and that ALH’s current placement was appropriate. See Exhibit 11 at pp. 838-839. The County Court set a Final Permanency Hearing for November 18, 2013.5 Id. at p 839. IV. STANDARD OF REVIEW Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and declarations, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Only disputes over facts that might affect the outcome of the suit under the governing 4 Mr. Hill also admitted to having used drugs in April 2013. See Exhibit 13 at p.13:15-18. 5 ALH died on July 31, 2013. 7 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 7 of 20 law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. Factual disputes that are irrelevant or unnecessary will not be counted. Id. Summary judgment is proper against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the opposing party “must set forth specific facts showing there is a genuine issue for trial.” FED. R. CIV. P. 56(e); Anderson, 477 U.S. at 248; see also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-586 (1986). The non-movant may not rest on unsubstantiated allegations, but must produce competent, tangible evidence to survive summary judgment. Celotex Corp., 477 U.S. at 324. Conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). Personal beliefs, no matter how genuinely held, are not evidence on which a verdict may rest because personal beliefs do not raise a genuine issue of material fact. Hornsby v. Conoco, Inc., 777 F.2d 243, 246 (5th Cir. 1985). Further, “[m]ere conclusory allegations are not competent summary judgment evidence, and they are therefore insufficient to defeat or support a motion for summary judgment.” Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). The non-movant is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support 8 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 8 of 20 the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir. 1992). Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court’s attention. Ragas at 458; Forsyth at 1536-1537. In this case, to avoid summary judgment, Ms. Sweeney must present competent summary judgment evidence that Defendant discriminated against her because of her alleged disability in violation of the ADA and/or the Rehab Act. Her unsubstantiated beliefs, assumptions, speculation, and self-serving conclusions, whether or not sincere, are not admissible evidence, and therefore, do not create a genuine fact issue. Based upon this standard and for the reasons articulated below there remains no genuine issue of material fact and Defendant is entitled to judgment as a matter of law. V. LEGAL ANALYSIS A. The ADA and The Rehab Act. The ADA is a federal anti-discrimination statute designed “[t]o provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” § 12101(b)(1); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589 (1999); Rizzo v. Children’s World Learning Centers, Inc., 173 F.3d 254, 262 (5th Cir. 1999). Section12132 of the ADA states “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132 (2015) (emphasis added). Similarly, The Rehab Act was enacted “to ensure that handicapped individuals are not denied jobs or other benefits because of prejudiced attitudes or ignorance of others.” Brennan v. 9 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 9 of 20 Stewart, 834 F.2d 1248, 1259 (5th Cir. 1988). Section 504 of the Rehab Act provides that “[n]o otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 749(a). The language in the ADA generally tracks the language set forth in the Rehab Act. In fact, the ADA expressly provides that “[t]he remedies, procedures and rights” available under the Rehab Act are also accessible under the ADA. 42 U.S.C. 12133 (1995). Thus, “[j]urisprudence interpreting either section is applicable to both.” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000). To state a prima facie claim under the ADA or the Rehab Act, a plaintiff must demonstrate that (1) she is a qualified individual with a disability6; (2) she is being excluded from participation in or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination is by reason of her disability. Sweeney v. Texas State University, 2015 WL 2345086, USDC Western Austin Division May 14, 2015 at *2 quoting Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir. 2004). “The [Rehabilitation Act] and the ADA are judged under the same legal standards, and the same remedies are available under both Acts.” Kemp v. Holder, 610 F.3d 231, 234-35 (5th Cir. 2010) (citing Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 574 (5th Cir. 2002)). 6 To make a valid claim under the ADA and the Rehab Act against this Defendant, Ms. Sweeney must demonstrate that she was qualified to be reunified with ALH with or without an accommodation. See Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (U.S. 1979); Maples v. Univ. of Tex. Med. Branch at Galveston, 901 F. Supp. 2d 874, 879-880 (S.D. Tex. 2012), aff’d 524 Fed. Appx. 93 (5th Cir 2013) (internal citations omitted). 10 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 10 of 20 The only material difference between Title II of the ADA and Section 504 of the Rehab Act lies in their respective causation requirements. Bennett-Nelson v. Louisiana Bd. Of Regents, 431 F.3d 448, 454 (5th Cir. 2005). Section 504 of the Rehab Act prohibits discrimination “solely by reason of” a person’s disability, whereas Title II of the ADA provides that “discrimination need not be the sole reason” for the adverse action or exclusion but rather “a motivating factor.” Pinkerton v. Spellings, 529 F.3d 513, 516-19 (5th Cir. 2008) (emphasis added); see also Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 503-04 (5th Cir. 2002). Further, a plaintiff asserting a private cause of action for violations of the ADA or the Rehab Act may only recover compensatory damages upon a showing of intentional discrimination. Carter v. Orleans Parish Pub. Sch., 725 F.2d 261, 264 (5th Cir. 1984). In addition to the prohibition against disability-based discrimination, the ADA imposes an affirmative obligation to make reasonable accommodations for disabled individuals who take advantage of a public entity’s services or programs. Borum v. Swisher County, 2015 WL 327508, USDC Northern District of Texas Amarillo January 26, 2015. To prevail on a claim for failure to accommodate, a plaintiff must be a qualified individual with a disability; the disability and its consequential limitations must have been known by the covered institution; and the covered institution failed to make reasonable accommodations for such known limitations. Jin Choi v. Univ. of Tex. Health Science Center at San Antonio, 633 Fed. Appx. 214, 215 (5th Cir. 2015) (citing Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013). Neither the ADA nor the Rehab Act requires the Defendant to modify or “fundamentally alter the nature of the service, program, or activity” or “alter eligibility criteria that are ‘shown to be necessary for the provision of the service, program, or activity being offered.’” Maples v. University of Texas Medical Branch at Galveston, 901 F. Supp.2d 874, 883 (S.D. Tex. 2012), aff’d 524 Fed. Appx. 11 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 11 of 20 93 (5th Cir. 2013). A federal-funding recipient is only required to make reasonable, not fundamental or substantial, modifications to accommodate persons with disabilities. Alexander v. Choate, 469 U.S. 287, 300 (1985). Both the ADA and the Rehab Act are subject to the Title VII burden-shifting analysis. See Pinkerton, 529 F.3d at 517: Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995). Once the prima facie case of disability discrimination is made, “a rebuttable presumption of discrimination arises, and the burden of production shifts to the Defendant to articulate a legitimate, non-discriminatory reason for its actions. Id. at 396; see also St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502, 506 (1993). The Defendant meets this burden by proffering admissible evidence of an explanation that would be legally sufficient to justify a judgment for the Defendant. Id. The Defendant does not need to persuade the trier of fact that there was no intentional discrimination; he need only produce evidence on that point. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 257-58 (1981). Once the Defendant satisfies his burden, the presumption of discrimination established by the prima facie case dissolves. McDonnell Douglas Corp., 411 U.S. 792 Douglas Corp. v. Green, 411 U.S. 792 (1993). Plaintiff’s burden of persuasion arises, and the Plaintiff must produce evidence that the Defendant’s proffered reasons are mere pretext and the real reason for the action having been based on an impermissible animus. Id. The ultimate burden remains with Ms. Sweeney to show intentional discrimination. Id. However, “subjective belief of discrimination, no matter how genuine, cannot serve as the basis for judicial relief.” Martin v. The Kroger Co., 65 F. Supp. 2d 516, 553 (S.D. Tex. 1999). Further, neither the ADA nor the Rehab Act protects Plaintiff from erroneous or even arbitrary decisions, 12 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 12 of 20 only those unlawfully motivated. See Armstrong v. Turner Indus., 141 Fed. 3d 554, 560 n. 16 (5th Cir. 1998) (citing Bienkowski v. American Airlines, 851 F.2d 1503, 1508 (5th Cir. 1988). B. Ms. Sweeney’s claims are barred by the statute of limitations. Neither Title II of the ADA nor the Rehabilitation Act provides a limitations period, therefore Texas’ two-year statute of limitations for personal injury applies. Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011); Gibson v. Houston Launch Pad, 378 Fed. Appx. 399, 400 (5th Cir. 2010) (ADA claims filed outside the two-year limitations period were properly dismissed with prejudice as time-barred because claims were not subject to tolling). See also Sweeney, 2015 WL 2345086 at *2. Accrual occurs when the plaintiff has a complete and present cause of action, i.e., when the plaintiff can file suit and obtain relief. Wallace v. Kato, 549 U.S. 384, 388 (2007). Thus, under federal law, a claim accrues the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). Here, Ms. Sweeney’s claims stem from the removal of ALH from Ms. Sweeney’s home in November 2012 and the decision not to return ALH at the Permanency Hearing in April 2013. See DKT 15 at ¶¶ 22-23. However, Ms. Sweeney did not file her petition until May 4, 2015, over two years after the removal and the hearing. See Exhibit 15. Because Ms. Sweeney did not file her lawsuit within the 2-year limitations period, her claims are time-barred and must be dismissed. Gibson, at 400. 13 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 13 of 20 C. Ms. Sweeney’s claims are barred because she lacks standing against this Defendant as there is no evidence that Defendant’s action and/or inaction caused Ms. Sweeney’s alleged injuries. Defendant is entitled to judgment as a matter of law because Ms. Sweeney does not have standing to bring this lawsuit against the Defendant. A federal court lacks subject matter jurisdiction over a matter when the plaintiff lacks standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Article III of the United States Constitution limits federal courts’ jurisdiction to “cases and controversies.” U.S. Const. Art. III, § 2; Rivera v. Wyeth- Ayerst Laboratories, 283 F.3d 315, 318 (5th Cir. 2002). To establish standing to sue, a plaintiff must make a three-pronged showing of: (1) an “injury in fact” that is concrete and particularized, and actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of that is “fairly traceable” to the challenged action of the defendant; and (3) redressability—it must be likely, not simply speculative, that the injury will be redressed by a favorable decision. U.S. v. Hays, 515 U.S. 737, 743 (1995); Public Citizen, Inc., et al. v. Elton Bomer, 274 F.3d 212, 217 (5th Cir. 2002) (quoting Lujan, 504 U.S. at 560–61). This triad of injury in fact, causation, and redressability constitutes the core of Article III’s case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence. Steel Co. v. Citizens for A Better Env’t, 523 U.S. 83, 103- 104 (1998). Failure to establish any one element deprives the federal courts of jurisdiction to hear the suit. Id. at 103. Standing is a threshold jurisdictional issue that the Court must evaluate before addressing the merits of the lawsuit. See Friends of the Earth, Inc. v. Laidlaw Env’tl. Servs. (TOC), 528 U.S. 167, 180 (2000). Here, Ms. Sweeney lacks standing because there is no record evidence that demonstrates that the Defendant failed to adequately perform his legal obligations in the provision of services 14 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 14 of 20 to Ms. Sweeney or that he violated the ADA or the Rehab Act. Ms. Sweeney alleges that Defendant’s failure to return ALH to Ms. Sweeney was a violation of federal laws. However, the record evidence indicates that the decision to remove ALH in November 2012 and all subsequent decisions not to return ALH to Ms. Sweeney were decisions made by the County Court of Law Number One of Williamson County, Texas. See Exhibits 6, 7, 8, 10, and 11. Although Defendant petitioned for removal after conducting a thorough investigation and concluding that ALH was not safe in Ms. Sweeney’s home because of the threat of violence and her parents' admitted drug use, the decision to remove and the decisions not to return ALH to Ms. Sweeney’s home were not made by Defendant. In fact, Defendant’s actions regarding the removal and return of ALH to Ms. Sweeney’s home were ordered by the court. Id. The record is void of any evidence supporting Ms. Sweeney’s claim that Defendant violated the ADA and/or the Rehab Act when ALH was removed from her home. In fact, all decisions regarding ALH’s placement were made by the Court, not Defendant. Further, there is no evidence in the record that supports Ms. Sweeney’s claim that Defendant failed to accommodate her or denied her benefits because of her disability. In short, there is no record evidence that establishes the requisite causal connection between any actions or inaction by Defendant and Ms. Sweeney’s alleged injuries. Therefore, Defendant is entitled to judgment as a matter of law and this Court should grant Defendant’s motion and dismiss Ms. Sweeney’s claims. D. Ms. Sweeney was not “otherwise qualified”. The ADA and the Rehab Act proscribes discrimination between the non-handicapped and the “otherwise qualified” handicapped. Johnson v. State of Louisiana, 2008 WL 4650502 (5th Cir. Feb. 12, 2008) (citing Baumeister v. New Mexico Comm’n for the Blind, 425 F. Supp.2d 15 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 15 of 20 1250, 1266 (D. N.M. 2006). To recover, Ms. Sweeney must demonstrate that she was denied services and that, in spite of her disability, she was “otherwise qualified” to receive the denied services. In other words, Ms. Sweeney must prove that if she is otherwise qualified, she can meet all of the program’s requirements in spite of her disability. This is not the case. Ms. Sweeney cannot prevail on her claims since she was not otherwise qualified to keep ALH or to be reunified with ALH because she had not completed the court-ordered conditions for reunification with ALH—conditions that had nothing to do with her alleged disability. According to the court orders Ms. Sweeney needed to complete a series of activities and services before ALH could be returned to her. For example, Ms. Sweeney was ordered to complete a drug and alcohol assessment and follow all treatment recommendations, maintain employment, maintain clean, sanitary, safe and stable housing, complete parenting classes, to name a few. At no time had Ms. Sweeney completed all of the required tasks. See Exhibits 7, 8, 9, 10, 11, 12, and 13. See also Exhibit 4 at p.42:7-p.43:1; p.45:25-p.46:3; p.66:10-12; p.84:10-25. E. Defendant did not exclude, deny any benefits, services, programs, or activities to Ms. Sweeney because of her alleged disability. There is no basis upon which a reasonable jury could conclude that Defendant petitioned the Court for the removal of ALH because of Ms. Sweeney’s alleged disability. See Exhibit 2. First, Ms. Sweeney admits in her Amended Complaint that Child Protective Services (CPS) was concerned about ALH’s safety in the home Ms. Sweeney shared with Mr. Hill because of their frequent arguments. See DKT 15 at ¶ 13. Moreover, Ms. Sweeney testified that she feared for her life and the life of her child in their home. See Exhibit 4 at p.27:12-p.29:5; p.31:13-17; p.32:14-18; p.38:23-p.39:8; and p.123:19-24. Ms. Sweeney also admitted to using drugs in front of ALH. See Exhibits 1, 2, and 4 at p.40:23-p.41:7. All of these factors led Defendant to 16 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 16 of 20 conclude that ALH was in danger and needed protection. It was for these reasons Defendant was prompted to petition for ALH’s removal from her parents' home. See Exhibits 2 and 14. The record is replete with evidence demonstrating that the reasons for Defendant’s petition to remove ALH from Ms. Sweeney’s home were the threat of violence and her parents' drug use, not any alleged disability. See Exhibits 1, 2, 6, 7, 8, 10, 11, 12, 13, and 14. F. Defendant was not required to Reasonably Accommodate or Modify its Policy Because of Ms. Sweeney’s Alleged Disability. Under Title II of the ADA, the “Plaintiff has the burden to seek an accommodation before asserting a claim for relief in a judicial forum.” 1 Ams. With Disab.: Prac. & Compliance Man. § 2:205. Further, the accommodation sought must be reasonable on its face. Id. Ms. Sweeney bears the burden of showing that the requested accommodation is (1) linked to her disability- related needs; (2) necessary to afford an equal opportunity for her to enjoy services or benefits; and (3) is possible to implement. Id. Ms. Sweeney asserts that Defendant’s failure to return her child to her was a failure to accommodate and, therefore, discrimination in violation of the ADA and the Rehab Act. See DKT 15 at ¶¶ 32, 37, and 38. However, Ms. Sweeney’s assertion does not meet the criteria for a reasonable accommodation as set out in the ADA and the Rehab Act. First, returning ALH was not linked to Ms. Sweeney’s disability-related needs, such as widening doorways would be for a citizen confined to a wheelchair. Second, returning ALH would not have provided Ms. Sweeney an equal opportunity afforded to non-disabled citizens as there is no evidence that a parent similarly situated to Ms. Sweeney, but for a disability, was reunited with their child despite ongoing safety concerns. Third, Defendant did not have the authority to return ALH to Ms. Sweeney because the Williamson County Court had exclusive jurisdiction and authority over ALH’s removal and any subsequent reunification. See Exhibit 2 at 740. 17 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 17 of 20 Even if Ms. Sweeney could prove that she requested an accommodation that was reasonable and necessary under the ADA, Defendant is entitled to the affirmative defense that the accommodation would fundamentally alter the nature of the service, public program, or activity and, therefore, Defendant was not required to make the accommodation because it would have required Defendant to defy court orders. 1 Ams. With Disab.: Prac. & Compliance Man. § 2:205. See Exhibits 1, 2, 6, 7, 8, 10, 11, 12, 13, and 14. G. Ms. Sweeney Cannot Overcome Defendant’s Legitimate, Non-Discriminatory Reasons for Removing ALH To Show Intentional Discrimination. Under the Supreme Court’s ruling in Jackson v. Birmingham Bd. Of Educ., 125 S.Ct. 1497 (2005), intentional and knowing misconduct must be proved to impose liability on a government defendant under Title II of the ADA and the Rehab Act. In this case, Ms. Sweeney relies on nothing more than her subjective belief that Defendant removed ALH as a result of Ms. Sweeney’s alleged disability. As previously shown, ALH was removed because the court found that ALH was in immediate danger and would not be properly cared for if ALH remained with Ms. Sweeney. ALH’s removal continued because Ms. Sweeney failed to meet the court-ordered conditions for reunification with ALH—court-ordered conditions that were not related to Ms. Sweeney’s alleged disability. See Exhibits 7, 8, 9, 10, 11, 12, 13, and 14 at p. 28:4-10. Since Defendant produced legitimate, non-discriminatory reasons for petitioning for the removal of ALH, the burden returns to Ms. Sweeney to show that Defendant’s proffered non- discriminatory reasons were pretexts and disability discrimination was the real reason. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Ms. Sweeney cannot meet this burden as there is no evidence of intentional discrimination. See Exhibit 14 at p.28:4-10; Exhibit 4 at p.72:13-24, p.80:15-20, p.80:24-p.81:2, p.85:9-p.86:1, p.88:21-23, p.97:6-7, p.97:10-p.98:13. 18 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 18 of 20 She cannot establish that Defendant’s decisions were based solely on discriminatory animus nor can she demonstrate that Defendant’s decisions were motivated by discriminatory animus. Therefore, Ms. Sweeney’s disability discrimination claims fail as a matter of law. VI. CONCLUSION AND PRAYER For the foregoing reasons, Defendant John J. Specia, Jr. respectfully requests that this Court grant his Motion for Summary Judgment, dismiss Plaintiff’s claims, order that Plaintiff take nothing by her action, and award Defendant all relief to which he is entitled, including but not limited to his costs. Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation ANGELA V. COLMENERO Division Chief /s/ Yvonne D. Bennett YVONNE D. BENNETT Texas Bar No. 24052183 Assistant Attorney General Office of the Attorney General P. 0. Box 12548 Austin, Texas 78711-2548 Phone No. (512) 463-2120 Fax No. (512) 320-0667 yvonne.bennett@texasattorneygeneral.gov Attorneys for Defendant 19 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 19 of 20 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendant John J. Specia’s Motion For Summary Judgment and Brief in Support was served via the Court’s electronic filing system on this 4th day of October, 2016, to: Martin J. Cirkiel, Esq. 1901 E. Palm Valley Boulevard Round Rock, Texas 78664 marty@cirkielaw.com Attorney for Plaintiff /s/ Yvonne D. Bennett YVONNE D. BENNETT Assistant Attorney General 20 Case 1:15-cv-00474-RP Document 21 Filed 10/04/16 Page 20 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION MARY SWEENEY ) ) ) PLAINTIFF, ) ) VS. ) CIVIL ACTION NO. ) ) 1:15-cv-474-RP JOHN J. SPECIA, JR., In ) His Official Capacity, As ) Director of The TEXAS ) DEPARTMENT OF FAMILY AND ) PROTECTIVE SERVICES ) ) DEFENDANT ******************************************************** ORAL DEPOSITION OF MARY SWEENEY JULY 12, 2016 ******************************************************** ORAL DEPOSITION OF MARY SWEENEY, produced as a witness at the instance of the DEFENDANTS, and duly sworn, was taken in the above-styled and numbered cause on the 12th of July, 2016, from 9:25 a.m. to 3:32 p.m., before OLIVIA M. MATA, CSR in and for the State of Texas, reported by machine shorthand, at the offices of the Texas Department of Family and Protective Services, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto. EXHIBIT 4Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 1 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 2 1 A P P E A R A N C E S 2 3 FOR THE PLAINTIFF: 4 MR. MARTIN J. CIRKIEL 1901 Palm Valley Blvd 5 Round Rock, Texas 78664 Tel: (512) 644-6658 6 Fax: (512) 644-6014 E-mail: marty@cirkielaw.com 7 8 FOR THE DEFENDANTS: 9 MS. YVONNE BENNETT 10 Assistant Attorney General PO Box 12548 11 Austin, Texas 78711 Tel: (512) 463-2120 12 Fax: (512) 320-0667 E-mail: Yvonne.bennett@texasattorneygeneral.gov 13 14 ALSO PRESENT: Cindy Hernandez, legal assistant 15 Rosa Rohr, attorney 16 17 18 19 20 21 22 23 24 25 Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 2 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 26 1 A. Yes. 2 Q. Did you wry that sentence that precedes your 3 signature in the middle of the page? 4 A. Yes. 5 Q. At the time you signed this piece of paper, did 6 you believe that the information you provided was 7 truthful and accurate? 8 A. I want to say that due to my ex that's what he 9 told them and I was forced to say that I did. So it 10 must have been in October -- I didn't smoke when I got 11 to Texas. 12 MS. BENNETT: Objection. Nonresponsive. 13 Q. (BY MS. BENNETT) At the time you signed -- and 14 you testified that this is your signature, correct? 15 A. Yes. 16 Q. And you also testified that you wrote this 17 statement that precedes your signature, correct? 18 A. Yes, ma'am. 19 Q. At the time you signed this, Exhibit 1, Bates 20 No. DFPS0061 was the information in the sentence that 21 you wrote and signed truthful? 22 A. Yes. 23 Q. In early November, do you recall having a 24 conversation with a CPS caseworker by the name of Trina 25 Fowler? Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 3 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 27 1 A. Yes. 2 Q. And do you recall during that conversation you 3 told Ms. Fowler that you had smoked pot or marijuana on 4 October 30, 2012? 5 A. Yes. 6 Q. And just to keep the record clear, on the 7 exhibit the sentence that you write says, "I used pott." 8 And it is spelled P-O-T-T. That word, "pott", are you 9 referring to marijuana? 10 A. Yes. 11 Q. I just want to make the record clear. If we 12 can go back to November 2 at the time that I believe you 13 and Joshua Hill had either a disagreement or argument. 14 A. Yes. 15 Q. And at the time I believe you testified that 16 the three of you were living with two adult friends? 17 A. Yes. 18 Q. In their apartment in Austin? 19 A. Yes. 20 Q. Do you recall if on that day you had used 21 illegal drugs? 22 A. No, I did not. 23 Q. Do you recall whether or not the police visited 24 that apartment on that day as a result of that argument 25 you had with Mr. Hill? Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 4 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 28 1 A. Yes, that was previous to the CPS call. 2 Q. The visit from the police? 3 A. Yes, they came first because he was trying to 4 take off with Alex in a rage and I put my hand over the 5 door so he couldn't close to door to protect my baby and 6 they said it was a civil matter, but they let me take 7 Alex out and go back upstairs. 8 Q. Who told you it was a civil matter? 9 A. The police. 10 Q. So the police did not take Mr. Hill with them? 11 A. No. 12 Q. And at that time you still had Alex with you? 13 A. Yes. 14 Q. Did the police eventually leave the apartment? 15 A. Yes. 16 Q. Was Mr. Hill still at the apartment when the 17 police left? 18 A. Yes. 19 Q. And you and Alex were still at the apartment 20 when the police left? 21 A. Yes. 22 Q. At that time, did you feel like you were in 23 danger? 24 A. Yes. 25 Q. And at that time, did you feel like Alex was in Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 5 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 29 1 danger as well? 2 A. Yes. 3 Q. And did you feel like the two of you were in 4 danger from something that Joshua Hill might do? 5 A. Yes. 6 Q. If you need to take a break, I am certainly 7 happy to do that. 8 Would you like to take a five-minute break 9 or so? It's perfectly fine? 10 MR. CIRKIEL: We will work through it. 11 We're going to be experiencing this all day. 12 MS. BENNETT: Just let me know. Even if 13 it's just a minute, we can do that for you. That will 14 be okay. 15 THE WITNESS: Thank you. 16 Q. (BY MS. BENNETT) When the police were there, 17 did they ask you to swear out a complaint or anything 18 like that? 19 A. No, ma'am. 20 Q. Did they take a statement from you? 21 A. No, they just let me take Alex and said it was 22 a civil matter and said there was nothing they could do. 23 Q. After the police officers left, what did you 24 do? 25 A. I went upstairs and my next door neighbor was a Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 6 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 31 1 person I want to see and then she asked where is he. He 2 meaning Josh. I said, I pointed across the way and I 3 said he's taking all of his paraphernalia and his drugs 4 over to the neighbors because the cops were called. 5 CPS -- he said he had called CPS and hung 6 up on them. I don't know if that was true or false. 7 When his sister came, they got into a fight and at that 8 time my next door neighbor saw all this and brought me 9 into her apartment for our safety and his sister as well 10 went inside because he was screaming and he started 11 banging on the windows, banging on the door demanding me 12 to come out. 13 Q. So even after you went to your neighbor's 14 apartment, did you still feel threatened by Mr. Hill? 15 A. Yes. 16 Q. And did you fear for the safety of yourself? 17 A. Yes, and my daughter. 18 Q. Okay. After Mr. Hill told you he called CPS, 19 did a CPS service worker show up at the apartment? 20 A. No. What happened was he supposedly calmed 21 down and said he was fine and he was at the door his 22 sister was on the inside of the door. He was on the 23 outside. He said all I want to do is see Alex and give 24 her a hug because I'm going to see my grandfather in the 25 hospital me and my neighborhood said no because you know Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 7 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 32 1 what's going to happen. 2 Q. What did you think was going to happen? 3 A. He was going to steal her and against my will 4 his sister opened the door and he came in calmly and I 5 was sitting on the couch. I had her in between me and 6 he gave her a hug and he picked her up and started 7 running out the door. His sister tried to block him so 8 he couldn't leave and pushed her into the wall and 9 almost slammed my daughter's head on a concrete pillar. 10 My neighbor and I tried to chase after him, but he took 11 her. 12 Q. And at that time, did you try to call the 13 police again? 14 A. I didn't know what to do. I was scared. He 15 had threatened me. 16 Q. So at this time you definitely feared for your 17 wellbeing and the safety of your daughter? 18 A. I was very scared for Alex. 19 Q. Okay. Do you recall if a CPS worker showed up 20 at the apartment at all that day? 21 A. No, they did not. His sister called CPS. 22 Q. His sister is Josh's sister? 23 A. Yes, her name is Valerie Gibson. 24 Q. She called CPS that day? 25 A. She called CPS on me thinking that we need the Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 8 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 38 1 A. His mother. When it says, supervised at all 2 times when in sight and sound by Diane Hill. And she 3 refused to let me see her. 4 Q. I understand. What I'm trying to find out is 5 how Diane Hill came to have Alex with her. 6 You said Alex spent the night with you and 7 Joshua in the apartment in August the night of the 8 fight, correct, and I believe you just testified that 9 you believe this face to face meeting with Ms. Fowler 10 may have even occurred the very next day? 11 A. Can I say something off record? 12 MR. CIRKIEL: Why don't we let her say to 13 it off record, but if she asks you to put it back on 14 record you have to. 15 THE WITNESS: That's fine. 16 MR. CIRKIEL: Is that fair? 17 MS. BENNETT: That's fair. 18 (Off the record at 10:26 a.m.) 19 (On the record at 10:27 a.m.) 20 MS. BENNETT: I'll ask it a different way. 21 MR. CIRKIEL: Thank you. 22 Q. (BY MS. BENNETT:) That's fine to put on the 23 record. The fight between you and Joshua Hill occurred 24 before your face to face meeting with Ms. Fowler? 25 A. Correct. Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 9 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 39 1 Q. When you met with Ms. Fowler, did you still 2 believe your safety was in jeopardy at the hands of 3 Joshua Hill? 4 A. Yes. 5 Q. At the time that you met Ms. Fowler, did you 6 believe that your daughter's safety was in jeopardy at 7 the hands of Mr. Hill? 8 A. Yes. 9 Q. Did you share that feeling with Ms. Fowler at 10 your face to face meeting? 11 A. No, I couldn't. 12 Q. You couldn't share that with her? 13 A. No, because I was threatened by my ex by 14 anything that I said. 15 Q. And your ex was in the meeting with you? 16 A. Yes. 17 Q. Joshua was in the meeting with and you Trina 18 Fowler? 19 A. Yes. 20 Q. And it is because of that threat from Joshua 21 Hill that you believe you couldn't share information 22 about your fear with Ms. Fowler? 23 A. Yes. 24 Q. Let's look at Exhibit 2 on that front page. If 25 you look at that top box on the left the sentences Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 10 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 40 1 states, "There will be no illegal drug use by anyone 2 carrying for this child." Do you see that statement? 3 A. Yes. 4 Q. During your meeting with Ms. Fowler, did you 5 tell her that Joshua Hill had used illegal drugs? 6 A. As in previously or as in at that moment? 7 Q. Since the time your daughter had been born. So 8 during your meeting with Ms. Fowler, had you told her 9 that you had observed Joshua Hill using illegal drugs 10 since November 2010? 11 A. Yes. 12 Q. Were you able to tell her how recently you had 13 seen Joshua Hill using illegal drugs? 14 A. No, because he was lying to her. 15 Q. So during that meeting did -- do you recall 16 Ms. Fowler asking Joshua Hill if he had used illegal 17 drugs recently? 18 A. He was trying to say he quit when I did, but 19 obviously, as you can tell by the tests, he failed and 20 by me saying that October 30, 2012, which was just 21 before Alex was taken, I'm negative and marijuana is in 22 your system for 30 days. 23 Q. During your face to face with Ms. Fowler, did 24 you talk to her about your use of illegal drugs? 25 A. Yes, I told her that I previously used Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 11 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 41 1 marijuana. 2 Q. Did you tell her that you recently used 3 marijuana? 4 A. Yes, I must have. 5 Q. Did you tell her you used pot four days ago on 6 October 30, 2012? 7 A. I must have. 8 Q. Okay. 9 (Exhibit 3, marked.) 10 Q. (BY MS. BENNETT) The court reporter is going 11 to hand you Exhibit 3. Take a few minutes to look that 12 over. 13 MR. CIRKIEL: Can I make a suggestion that 14 she get five minutes to look that over? It's rather 15 lengthy. 16 MS. BENNETT: Sure. 17 THE WITNESS: Can I say something? 18 Q. (BY MS. BENNETT) I don't have a question out 19 there. Are you confused about the document? 20 A. Yeah. It says, I said, I said, I said, but 21 when it comes down to -- I never said -- it says 22 Ms. Sweeney is under the influence of prescribed 23 medication to control her seizures and is not mentally 24 sound. I never said I was not mentally sound. 25 Q. Right. I don't believe that that is saying Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 12 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 42 1 that you said that. 2 A. A lot of things on here is what Josh said. 3 MR. CIRKIEL: Let her go through that. 4 Q. (BY MS. BENNETT) I apologize, but I do want to 5 turn your attention back to Exhibit 2 just for a couple 6 of questions. 7 On Exhibit 2 on page 501 which again is the 8 second page of that document, if we look in the middle 9 box, the statement is that, Failure to comply with the 10 above task and those tasks are noted on the front page, 11 could result in actions leading up to and including the 12 removal of the child. 13 A. Yes. 14 Q. And did I read that correctly? 15 A. Yes. 16 Q. You signed off on that document? 17 A. Yes. 18 Q. At the time you signed this document, had you 19 read that middle box before you signed? 20 A. Yes. 21 Q. And was it your understanding that if you did 22 not stop using illegal drugs while caring for the child 23 that the child could be removed? 24 A. Yes. 25 Q. Did you understand that? Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 13 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 43 1 A. Yeah. 2 Q. Taking a look at Exhibit 3, do you recognize 3 this document? 4 A. I don't remember some of it. 5 Q. Okay. Let's turn to No. 641. This is the 6 parent's acknowledgment paper. 7 A. Yes. 8 Q. Is that your signature down at the bottom? 9 A. Yes. 10 Q. Do you recall signing this? 11 A. Yes. 12 Q. When you signed this, do you recall whether or 13 not the other pages were attached to it? 14 A. No, ma'am. 15 Q. Do you recall being in a meeting with a CPS 16 worker when they walked through all the other 17 information on the previous pages? 18 A. I remember her speaking about it. 19 Q. All right. 20 A. I remember that -- I remember Josh lying to 21 them, but there was nothing that I could do. 22 Q. Let's talk about what you remember being told. 23 A. I was told that -- 24 Q. I'll ask a specific question. 25 A. Okay. Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 14 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 45 1 telling you and I'm on page 637. Do you remember Trina 2 telling you that in order to have Alex returned to you 3 that you would need to continue to seek mental health 4 treatment through Austin Lakes Hospital and follow all 5 their recommendations? 6 A. Yes. 7 Q. Do you remember her telling you that you will 8 participate and complete a psychological evaluation? 9 A. Yes. 10 Q. Do you remember Ms. Fowler telling you that you 11 need to participate and complete individual therapy and 12 follow all those recommendations? 13 A. Yes, and I did so. 14 Q. When did you do that, do you recall? 15 A. As soon as they told me to. 16 Q. Did you need to provide any sort of proof that 17 you had completed that task and service? 18 A. I was told that my therapist would let them 19 know. As far as any others, I don't know. 20 Q. We'll work through them one by one so we can 21 keep the record clear. You recall that you don't 22 necessarily recall seeing the other pages, but you do 23 recall Ms. Fowler walking you through these things. 24 A. Yes. 25 Q. When you signed that paper, did you understand Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 15 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 46 1 that you needed to complete these tasks before your 2 daughter would be returned to you? 3 A. Yes. 4 Q. Going back to continuing to seek mental health 5 treatment did you complete that task? 6 A. Yes. 7 Q. How did you prove that you had completed that 8 task? 9 A. I had a therapist -- I completed it when Alex 10 died. That's when that was completed because she 11 decided to no longer take me in. 12 Q. So continuing to seek mental health treatment, 13 is it your testimony that that task was not completed 14 before mid July 2013? 15 A. The therapy? 16 Q. If we look at the first box, continue to seek 17 mental health treatment through Austin Lakes Hospital 18 and follow all recommendations. In mid July 2013, were 19 you still seeking mental health treatment through Austin 20 Lakes Hospital in July 2013? 21 A. No, ma'am. 22 Q. When did you stop seeking mental health 23 treatment through Austin Lakes Hospital? 24 A. Can you explain to me what -- it's just -- it's 25 such a blur. I apologize. Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 16 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 66 1 I don't see any reason -- is there any reason why Alex 2 should not be able to go home to her mother today and 3 John stepped up and said no, not at all. Then Maria 4 stepped up and she said that's why I'm here. He's new. 5 He hasn't done the home check and Mary does not have a 6 job. 7 Now, they know I was in search of a job. 8 They knew I had interviews. And in fact, the day of my 9 daughter's funeral I got a job offer. 10 Q. At the time of that hearing on July 11, 2013, 11 did you have a job? 12 A. I did not. I was working on getting one, but 13 Karen did have a job. She was a Subway manager, but she 14 was working for AFES which is a military base. She had 15 a really, really good job. She was able to take care of 16 both of us and herself up until I was able to get a job, 17 which I was out every day looking for a job. 18 Q. Had you listed Karen Owens as a potential 19 caregiver for Alex? 20 A. Yes. 21 Q. On what document did you list her as a 22 potential caregiver? 23 A. You know what, I didn't have enough time to do 24 that. I was with her for two months before Alex died. 25 Q. So to the best of your knowledge, was the Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 17 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 72 1 everything because this is definitely -- 2 MR. CIRKIEL: Let's go off the record. 3 (Off the record at 11:51 a.m.) 4 (On the record at 11:52 a.m.) 5 THE WITNESS: Her attorney is Cole 6 Spainhouer, is that what we have down? 7 MS. BENNETT: Yes. 8 THE WITNESS: Marie Thompson, that's the 9 attorney that spoke. Now that see her name. 10 Q. (BY MS. BENNETT) Do you recognize this 11 document? 12 A. Yes. 13 Q. If you turn over to the back page that is 14 parked DFPS0244 near the bottom, is that your signature? 15 A. Yes, it is. 16 Q. And do you recall placing that signature on 17 this document? 18 A. Yes, I do. 19 Q. At the time of hearing, do you recall this 20 hearing in January 2013? 21 A. Yes. 22 Q. At the time of this hearing, did you say 23 anything to the judge? 24 A. No, ma'am, I don't believe I did. I was scared 25 to. Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 18 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 80 1 Q. Alright. And just to keep the record clear, 2 again I have double sided copying. Exhibit No. 8 3 consists of pages DFPS0621, DFPS0262, DFPS0263, DFPS0264 4 and DFPS0265. 5 A. Yes. 6 Q. DFPS0266 is not a part of Exhibit 8. 7 A. I am noticing that the judge that represented 8 every court hearing is Susan Brooks. 9 Q. And do you believe that Judge Susan Brooks 10 presided all of the -- 11 A. Yes. 12 Q. -- permanency hearings as well as the status 13 hearings? 14 A. Yes. 15 Q. Before you signed this permanency hearing 16 that's been marked as Exhibit 8, did you say anything to 17 the judge? 18 A. For the July 11 court hearing? 19 Q. This is one that occurred on April 25, 2013. 20 A. No, I didn't. 21 Q. No, you did not say anything to the judge. 22 A. Josh may have, but I don't recall. He always 23 made the -- 24 Q. At the time of the hearing and before you 25 signed the order, did you state to the judge that you Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 19 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 81 1 disagreed with the activity that she was ordering? 2 A. No, I never disagreed. I thought I was doing 3 the right thing. 4 Q. At the time of the hearing the April 25, 2013, 5 hearing, did you ever tell the judge that you had 6 completed all of the tasks and services that had been 7 set out in your family plan? 8 A. What do you mean by "family plan"? 9 Q. If we go back to Exhibit No. 3. I apologize I 10 misspoke. 11 It's called your family service plan. 12 Exhibit No. 3. 13 A. She did bring up -- the judge did bring up 14 family unification and that's what their permanent goal 15 was. She would go over there every time in court. 16 Q. Specifically at the April 25, 2013, hearing? 17 A. Yes. 18 Q. And you and I started walking through these 19 earlier if you recall. My question right now is at this 20 hearing on April 25, 2013, did you tell the judge that 21 you had completed all of the tasks and services you were 22 required to complete? 23 A. Yes. Yes, I did, but my therapy they wanted me 24 to continue. 25 Q. Okay. A moment ago you testified that you Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 20 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 84 1 Q. If you will turn with me to DFPS0295, is that 2 your signature on that page? 3 A. Yes. 4 Q. And do you recall -- strike that. Did you 5 place your signature on this page? 6 A. Yes, ma'am. 7 Q. Did you place your signature after having read 8 the contents of this order? 9 A. Yes. 10 Q. If you turn with me to DFPS0293. Again, in the 11 middle of that page, I'll read: The Court has evaluated 12 the party's compliance with temporary orders and the 13 service plan and finds that Mary Sweeney is engaging in 14 her service plan, but has not yet completed all of the 15 tasks and services set forth in her service plan. Did I 16 read that correctly? 17 A. Yes. 18 Q. And at that hearing of July 11, 2013, is it 19 your understanding that that is a correct statement? 20 A. Yes. 21 Q. Alright. At any time during that statement of 22 July 11, 2013, did you tell the judge that you had 23 completed all of the tasks and services set forth in 24 your family service plan? 25 A. I did not. I just assumed that again, it was Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 21 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 85 1 for the therapy that they wanted me to continue which I 2 did. 3 MS. BENNETT: Objection. Nonresponsive to 4 everything after no, I did not. 5 Q. (BY MS. BENNETT) We've talked about orders 6 being issued from, at least, three hearings in front of 7 the judge. Do you recall that correctly? 8 A. Yes. 9 Q. During your status hearing, January 23, 2013, 10 did you ever tell the judge that you believe your CPS 11 worker was discriminating against you? 12 A. Unfortunately, no. 13 Q. During the initial permanency hearing where you 14 appear before Judge Susan Brooks, did you ever tell 15 Susan Brooks that you believed that the CPS workers or 16 DFPS was discriminating against you? 17 A. No. 18 Q. And then during the -- 19 A. I do believe Josh did, but I can't vouch for 20 him. 21 Q. During any of the hearings that you had before 22 any judge in regards to the removal and continued 23 removal of Alex from your home, did you ever tell the 24 judge that you believed any of the CPS workers were 25 discriminating against you? Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 22 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 86 1 A. No, not the judge. 2 Q. Did you tell anyone you believed you were being 3 discriminated against? 4 A. Telethea, which was the lady who did the 5 visitations. 6 Q. When you say did the visitations -- 7 A. She did the monitoring of the visitations. She 8 brought Alex to me and bought her back. 9 Q. To your knowledge, was she a CPS worker at that 10 time? 11 A. Yes, ma'am. 12 Q. What did you tell Telethea? 13 A. I told her about Josh and how I was scared of 14 him. I left him and I confided her in her about my 15 therapy that I'm doing, that I was doing. I let her 16 know how scared I was in the placement of where my 17 daughter was put. 18 The fact they put her in Josh's mother's 19 care with a sex offender and no offense here, but an 20 African-American family with seven other children that 21 she started biting kids. They started corn-row'ing her 22 hair. And when I took it out she would sit there and 23 say, ouch, ouch, ouch. She had red dots in her head. 24 There was mold in the diaper bag. She was overly 25 dressed. Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 23 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 88 1 upon lies from Josh. I told him about my unsatisfactory 2 of the placements. The fact that in her last home my 3 daughter was ripping her hair out and was almost 4 completely bald by the time she died. 5 Q. When you were talking to John and when you were 6 explaining what you thought was discrimination toward 7 you, and the first thing you said was it was wrong for 8 them to wait three months for you to get your classes 9 started, who's the "them"? 10 A. CPS. 11 Q. Do you recall who your caseworker was at that 12 time when your classes were to start? 13 A. I didn't have a caseworker I was working with 14 Trina Fowler for three months before I even got a 15 caseworker. 16 Q. Was this three months after Alex had been 17 removed? 18 A. Yes, ma'am. 19 Q. Okay. And why do you think that was 20 discrimination? 21 A. Why would -- I believe it's discrimination 22 because of who I was with. It made me feel like I was 23 an unfit mother. And they showed me no proof of why I 24 should not have had my daughter and I feel very 25 discriminated by that. Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 24 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 97 1 Borrego, did you tell him you had a seizure disorder? 2 A. I'm sure once I did, but after that, it was 3 kind of -- that's the reason who I daughter was taken 4 away from me so he should know that. 5 Q. Did he tell you that? 6 A. No, nobody ever spoke about my seizures, nobody 7 being Stephen, CPS, anybody. It was just noted that I 8 had them. 9 Q. Okay. If you would take a look with me at 10 Exhibit No. 3 and take a look at page 641 which is near 11 the back. And if we can look at paragraph No. Six on 12 that page. 13 A. Okay. 14 Q. There's a list of things that it says that you 15 can do if you have issues with CPS or family service 16 plan. I'm going to ask about each one of those. 17 It says that, I understand I may request to 18 review or change of this plan or an evaluation of 19 progress at any time. 20 Did you ever make a request to review or 21 change this family service plan? 22 A. Are you meaning change it in try to get my 23 daughter back in a different way? 24 Q. You signed off on it and you had read the 25 information contained in the document, correct? Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 25 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 98 1 A. Yes. 2 Q. So I'm asking you here today is whether or not 3 you requested a review or change of this specific family 4 service plan? 5 A. No. Because, honestly, I read and it I didn't 6 understand, but I did what I had to do. 7 Q. Did you ever request an administrative review 8 of this family service plan? 9 A. Me, no. 10 Q. So did you discuss or file any sort of 11 complaint against Child Protective Services about this 12 family service plan? 13 A. No, the only complaints I had was the way my 14 daughter was being treated. 15 Q. Did you ever request a fair hearing? 16 A. A fair hearing? 17 Q. It says, I may also request a fair hearing if 18 services that I've requested are denied. 19 First of all, do you believe that CPS 20 denied you any fair services according to the family 21 service plan? 22 A. Can you please repeat? 23 Q. Certainly. Do you believe CPS denied you any 24 services that were laid out in this family service plan? 25 A. I believe they never tried to enforce it and Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 26 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 123 1 Q. (BY MS. BENNETT) My question was, do you 2 recall whether or not you heard Ms. Gibson tell 3 Ms. Fowler that on the phone? 4 A. No, ma'am. Can I ask one question? Does it 5 say that she did say that? 6 Q. I'm just trying to ask you what you remember 7 being said on the telephone. You do recall there was a 8 telephone concerns? 9 A. Yeah, is he called CPS on Josh, not me on Josh. 10 Q. At the time of that telephone call between 11 Ms. Gibson and Ms. Fowler was Joshua Hill in your 12 immediate vicinity? 13 A. Yes. 14 Q. Do you know if he was at a distance close 15 enough where he could hear Ms. Gibson talking on phone? 16 A. I don't know if he heard it, but I can tell you 17 with as loud as she was and him being in the parking 18 lot, he probably could have. 19 Q. At the time that Ms. Gibson was on the phone 20 with Ms. Fowler, did you fear for your safety? 21 A. Yes, I did. 22 Q. And did you fear for the safety of you and your 23 daughter? 24 A. Yes, I did very much and Valerie Gibson has 25 also been in CPS which means I don't trust anything she Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 27 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 130 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS 2 AUSTIN DIVISION 3 MARY SWEENEY ) ) 4 ) PLAINTIFF, ) 5 ) VS. ) CIVIL ACTION NO. 6 ) ) 1:15-cv-474-RP 7 JOHN J. SPECIA, JR., In ) His Official Capacity, As ) 8 Director of The TEXAS ) DEPARTMENT OF FAMILY AND ) 9 PROTECTIVE SERVICES ) ) 10 11 DEFENDANT. 12 ******************************************************** 13 REPORTER'S CERTIFICATION 14 DEPOSITION OF MARY SWEENEY 15 JULY 12, 2016 16 17 I, OLIVIA M. MATA, Certified Shorthand Reporter in 18 and for the State of Texas, hereby certify to the 19 following: 20 That the witness, MARY SWEENEY, was duly sworn by 21 the officer and that the transcript of the oral 22 deposition is a true record of the testimony given by 23 the witness; 24 That the deposition transcript was submitted on 25 ____________________ to the witness or to the attorney Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 28 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 131 1 for the witness for examination, signature and return to 2 me by ____________________; 3 That the amount of time used by each party at the 4 deposition is as follows: 5 Ms. Bennett.....00 HOUR(S):00 MINUTE(S) 6 Mr. Cirkiel.....00 HOUR(S):00 MINUTE(S) 7 That pursuant to information given to the 8 deposition officer at the time said testimony was taken, 9 the following includes counsel for all parties of 10 record: 11 12 13 14 FOR THE PLAINTIFF: 15 MR. MARTIN J. CIRKIEL 1901 Palm Valley Blvd 16 Round Rock, Texas 78664 Tel: (512) 644-6658 17 Fax: (512) 644-6014 E-mail: marty@cirkielaw.com 18 19 FOR THE DEFENDANTS: 20 MS. YVONNE BENNETT 21 Assistant Attorney General PO Box 12548 22 Austin, Texas 78711 Tel: (512) 463-2120 23 Fax: (512) 320-0667 E-mail: Yvonne.bennett@texasattorneygeneral.gov 24 25 Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 29 of 30 Mary Sweeney - 7/12/2016 Integrity Legal Support Solutions www.integrity-texas.com 132 1 That $__________ is the deposition officer's 2 charges to the Defendants for preparing the original 3 deposition transcript and any copies of exhibits; 4 I further certify that I am neither counsel for, 5 related to, nor employed by any of the parties or 6 attorneys in the action in which this proceeding was 7 taken, and further that I am not financially or 8 otherwise interested in the outcome of the action. 9 Certified to by me this __________ of ____________, 10 2016. 11 12 13 _____________________________________ OLIVIA GUZMAN MATA 14 Integrity Legal Support Solutions 3100 W. Slaughter Lane, Suite A-101 15 Austin, Texas 78748 Tel: (512) 320-8690 16 Fax: (512) 320-8692 17 18 19 20 21 22 23 24 25 Case 1:15-cv-00474-RP Document 21-1 Filed 10/04/16 Page 30 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION MARY SWEENEY, ) ) Plaintiff, ) vs. ) ) CASE NO. 1:15-CV-474-RP JOHN J. SPECIA, JR., IN HIS ) OFFICIAL CAPACITY, AS DIRECTOR) OF THE TEXAS DEPARTMENT OF ) FAMILY AND PROTECTIVE ) SERVICES, ) ) Defendant. ) ORAL DEPOSITION OF TRINA FOWLER THURSDAY, AUGUST 25, 2016 ORAL DEPOSITION OF TRINA FOWLER, produced as a witness at the instance of the Plaintiff, and duly sworn, was taken in the above-styled and -numbered cause on the 25th day of August, 2016, from 9:15 a.m. to 10:07 a.m., before RABIN MONROE, Certified Shorthand Reporter in and for the State of Texas, reported by computerized stenotype machine, at the offices of the TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, 14000 Summit Drive, Austin, Travis County, Texas 78728, pursuant to the Federal Rules of Civil Procedure and any provisions stated on the record or attached hereto. EXHIBIT 14 Case 1:15-cv-00474-RP Document 21-2 Filed 10/04/16 Page 1 of 5 Trina Fowler - 8/25/2016 Integrity Legal Support Solutions www.integrity-texas.com 2 1 APPEARANCES 2 3 FOR PLAINTIFF 4 MR. MARTIN JAY CIRKIEL SBOT No. 00783829 5 marty@cirkielaw.com CIRKIEL & ASSOCIATES, P.C. 6 1901 East Palm Valley Boulevard Round Rock, Texas 78664 7 Phone: (512) 244-6658 Fax: (512) 244-6014 8 www.cirkielaw.com 9 10 FOR DEFENDANT 11 MS. YVONNE D. BENNETT SBOT No. 24052183 12 yvonne.bennett@texasattorneygeneral.gov OFFICE OF THE ATTORNEY GENERAL 13 General Litigation Division 300 West 15th Street 14 Austin, Texas 78701 Phone: (512) 463-2120 15 Fax: (512) 320-0667 16 17 18 19 ALSO PRESENT: 20 ROSA L. ROHR, Representative of Defendant, Litigation Counsel, Texas Department of Family 21 and Protective Services 22 23 24 25 Case 1:15-cv-00474-RP Document 21-2 Filed 10/04/16 Page 2 of 5 Trina Fowler - 8/25/2016 Integrity Legal Support Solutions www.integrity-texas.com 28 1 A. PN'd. "Priority none." It was closed. 2 Q. And what does that mean? If you could share 3 that. What -- what that means for everybody. 4 A. That means that we didn't investigate that. 5 Q. At that time. 6 A. Mm-hmm. 7 Q. And then did her seizures become an issue later 8 on? As you got more involved in the case? 9 A. I wasn't focused on her seizures durin' my 10 investigation, no. 11 Q. It was just something that you -- you wrote 12 about. 13 A. Yes. 14 Q. M'kay. When you were with her, did she sign 15 some consent forms to get medical records? 16 A. She did. 17 Q. M'kay. Do you know if anyone ever asked for 18 records from the hospital that she was at? 19 A. It was so long ago. If she signed 'em and I 20 sent them, sometimes hospitals don't give you the 21 records. It could take a long time. So if they weren't 22 in her file, then I may have not gotten them. (Cleared 23 throat.) Excuse me. 24 Q. And . . . and do you recollect ever sending a 25 letter to a private doctor about her seizure disorder? Case 1:15-cv-00474-RP Document 21-2 Filed 10/04/16 Page 3 of 5 Trina Fowler - 8/25/2016 Integrity Legal Support Solutions www.integrity-texas.com 41 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS 2 AUSTIN DIVISION 3 MARY SWEENEY, ) ) 4 Plaintiff, ) vs. ) 5 ) CASE NO. 1:15-CV-474-RP JOHN J. SPECIA, JR., IN HIS ) 6 OFFICIAL CAPACITY, AS DIRECTOR) OF THE TEXAS DEPARTMENT OF ) 7 FAMILY AND PROTECTIVE ) SERVICES, ) 8 Defendant. ) 9 COURT REPORTER'S CERTIFICATE 10 ORAL DEPOSITION OF TRINA FOWLER 11 THURSDAY, AUGUST 25, 2016 12 13 I, RABIN MONROE, Certified Shorthand Reporter 14 in and for the State of Texas, hereby certify to the 15 following: 16 That the witness, TRINA FOWLER, was duly sworn 17 by the officer and that the transcript of the deposition 18 is a true record of the testimony given by the witness; 19 That the deposition transcript was submitted 20 on ____________________ _____, 2016, to the witness, or 21 to the attorney for the witness, for examination and 22 signature, to be returned by __________________ ____, 23 2016; 24 That pursuant to information given to the 25 deposition officer at the time said testimony was taken, Case 1:15-cv-00474-RP Document 21-2 Filed 10/04/16 Page 4 of 5 Trina Fowler - 8/25/2016 Integrity Legal Support Solutions www.integrity-texas.com 42 1 the following includes all parties of record, along with 2 the amount of time used by each party at the time of the 3 deposition: 4 MR. MARTIN JAY CIRKIEL Counsel for Plaintiff 5 TIME USED: 45 Minutes 6 MS. YVONNE D. BENNETT Counsel for Defendant 7 TIME USED: 1 Minute 8 9 I further certify that I am neither counsel 10 for, related to, nor employed by any of the parties in 11 the action in which this proceeding was taken, and 12 further, that I am not financially or otherwise 13 interested in the outcome of this action. 14 Certified to by me on this 7th day of 15 September, 2016. 16 17 18 19 20 ______________________________ 21 RABIN MONROE, RDR, CRR, CRC INTEGRITY LEGAL SUPPORT SOLUTIONS 22 3100 W. Slaughter Lane, Suite 101 Austin, Texas 78748 23 Phone: (512) 320-8690 Fax: (512) 320-8692 24 25 Case 1:15-cv-00474-RP Document 21-2 Filed 10/04/16 Page 5 of 5 15-0453-C277 Filed: 51412015 5:00:55 PM Lisa David, District Clerk Williamson County, Texas Judy Tenneyuque MARY SWEENEY Plaintiff, § IN THE DISTRICT COURT ~Williamson County - 277th Judicial District Court § vs. § JUDICIAL DISTRICT § JOHN J. SPECIA, JR., In His Official Capacity, As Director Of The § § TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES Defendant. § § § WILLIAMSON COUNTY, TEXAS PLAINTIFF'S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Mary Sweeney, Plaintiff herein, by and through her attorney of record, Martin J. Cirkiel of the Law Firm of Cirkiel & Associates, P .C, and brings this her Original Petition against the Texas Department of Protective & Regulatory Services ("the Defendant" or Department" herein) and would respectfully show this Court the following: I. BRIEF REVIEW OF THE CASE 1. Mary Sweeney had a seizure disorder and is considered a person with a disability for this cause of action. 2. The Texas Department of Protective & Family Services removed her child from her home, as they believed (at the time) that Mary's disorder was untreated and a such, she could not keep her child safe. While the initial belief that the disorder was not under control was mistaken, as was the concern that the child was not safe, very soon thereafter it became absolutely clear that Mary's condition was under control. Nevertheless the Department refused to return the child to Ms. Sweeney based upon her disability thereby violating her rights pursuant to the Americans with Disabilities Act ("ADA"), 42U.S.C.,§12101, et seq. and in addition and in the alternative, her rights pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 ("Rehab Act"). For such violations Plaintiff seeks damages and compensation for the injuries she experienced, all as more fully discussed below. Plaintifl's Original Petition Envelope# 5139546 EXHIBIT 15 Case 1:15-cv-00474-RP Document 21-3 Filed 10/04/16 Page 1 of 1