Minnesota Lawyer Names Jeffrey Montpetit 2018 Attorney Of The Year

SiebenCarey today announced that Minnesota Lawyer has named Jeffrey Montpetit, a shareholder at the firm, one of its “2018 Attorneys of the Year.” Recipients of the annual Attorneys of the Year award are selected based on leadership in the profession and involvement in major cases. Montpetit and attorney Jeffrey Storms, of Newmark Storms & Dworak, were one of only two teams honored with this distinction for their work on the sad case of 6-year-old Kendrea Johnson.

Shortly after Christmas, in December 2014, six-year-old Kendrea Johnson was found hanging from a jump rope, tied to a bunk bed, in her foster home bedroom. The Hennepin County Medical Examiner’s Office identified Kendrea’s death as undetermined, unable to rule out either accident or suicide in its cause of death determination. Based upon our review and analysis, we became certain that this young girl’s death was a suicide.

A little over a year later, we initiated a federal civil rights claim on behalf of her next of kin against Hennepin County and certain individual employees pursuant to 42 U.S.C. § 1983, in addition to supplemental state law claims. This case required that we succeed on several important points, both legally and medically, two of which we thought would be helpful to share with the wider legal community. First, why were Kendrea’s civil rights implicated in her death? Second, why should Kendrea’s death appropriately been classified as a “suicide?”

Under the Fourteenth Amendment’s substantive due process jurisprudence, government entities owe a duty to protect individuals who are placed in its custody. A more commonly litigated issue involves the duty to protect that arises when pre-trial detainees are placed in a county jail. The same duty to protect arises in the context of foster care. See, e.g., James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006). “In foster care, a child loses his freedom and ability to make decisions about his own welfare, and must rely on the state to take care of his needs.” Norfleet ex rel. Norfleet v. Ark. Dep’t of Human Services, 989 F.2d 289, 293 (8th Cir. 1993).

The distinction of foster care placement is critical. We often hear of egregious cases of abuse where a child is on the radar of a county child protection agency, the child is not removed from the home, and the child suffers extreme abuse and potentially death at the hands of her parents. Unfortunately, claims arising under such fact scenarios have long been precluded from Fourteenth Amendment protections pursuant to DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989). Section 1983 textbooks often refer to this as the problem of government “inaction.” By not removing the child at risk, the government did not act, so Fourteenth Amendment substantive due process rights are not implicated. It was, however, a footnote in the DeShaney opinion left the door open for claims such as Kendrea’s: “Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect.” 489 U.S. at 201, n.9.

In order to prove that a Fourteenth Amendment violation occurred in Kendrea’s case, we needed to show that there was a deliberate indifference to Kendrea’s serious medical needs. We believe we made a strong showing that Kendrea had an objectively serious medical need because her various records showed that she suffered from extreme mental illness, including depression and suicidality, following her removal from her family’s care. We believe the record also showed that there was a failure to obtain necessary and ordered care to treat that medical need by county employees, despite their knowledge of that medical need (i.e., deliberate indifference). Kendrea’s Fourteenth Amendment rights were thus violated.

In addition to creating a record of deliberate indifference, we still needed to show causation. If Kendrea’s death were but a mere accident, that would be very difficult to do. We needed to show that Kendrea committed suicide. This was not an easy task. Virtually everyone without expertise who hears about this story has a difficult time conceptualizing that a child so young could even conceive of suicide, let alone follow through with it.

Suicide amongst children as young as Kendrea is rare, but it does happen, as has been well documented in medical literature. See, e.g., Tishler et al., “Suicide Behavior in Children Younger than Twelve: A Diagnostic Challenge for Emergency Department Personnel,” Academic Emergency Medicine Vol. 14, No. 9 (2007); see also World Health Organization, “Preventing suicide: A global imperative,” (2014).

Kendrea’s suicide is strikingly consistent with similarly situated suicides documented in the recent study by Sheftall et al. in “Suicide in Elementary School-Aged Children and Early Adolescents,” Pediatrics Vol. 138, No. 4 (Oct. 2016). The commonly seen characteristics for successful suicide in this group were male, black, died by hanging/strangulation/suffocation, died at home, and had relationship problems. The only significant non-majority category Kendrea fell into was “female” rather than “male.” Ultimately, Kendrea’s suicide was highly consistent with other documented suicides of children in her age group. When comparing the medical literature against Kendrea’s significant medical history of suicidality, we were left with little doubt that Kendrea did, in fact, commit suicide.

It is our hope that skilled legal practitioners will chip away at DeShaney as it pertains to government’s obligations towards children in the child protection system, but not placed in foster care. Montpetit said, “Civil rights actions deter bad conduct, and holding child protection workers and entities accountable for the failure to intervene when necessary, would be a powerful sword to wield on behalf of vulnerable children.” “It is also our hope that Kendrea’s story will make social services workers, guardians ad litem, medical professionals, and all others working with vulnerable children take the threat of suicide very seriously, regardless of the child’s age.”

A graduate of the William Mitchell College of Law in 1998, Montpetit is a partner at SiebenCarey and is admitted to practice law in the States of Minnesota and Wisconsin, Minnesota Federal District Court, and the 8th Circuit Court of Appeals.

Montpetit will receive the Minnesota Lawyer award on February 13, 2019.