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United States Court Of Appeals

For The Eighth Circuit No. 17-2279

Anmarie Calgaro,

Plaintiff – Appellant,

v.

St. Louis County; Linnea Mirsch, individually and in her official capacity as Interim Director of St. Louis County Public Health and Human Services;

Fairview Health Services, a Minnesota nonprofit corporation; Park Nicollet Health Services, a nonprofit corporation;

St. Louis County School District; Michael Johnson, individually and in his official capacity as Principal of the Cherry School,

St. Louis County School District; and E.J.K.,

Defendants – Appellees.

APPELLANT’S APPENDIX

Erick G. Kaardal, 229647 Mohrman, Kaardal & Erickson, P.A. 150 South Fifth Street, Suite 3100 Minneapolis, Minnesota 55402 Telephone: 612 341-1074 Facsimile: 612-341-1076 Email: [email protected] Attorneys for the Plaintiff-Appellant Dated: July 31, 2017

Attorneys for St. Louis County and Mirsch Nick D. Campanario COUNTY ATTORNEY'S OFFICE 100 N. Fifth Avenue, W., Room 501 Duluth, MN 55802-2322 Attorneys for Park Nicollet Health Services Stephanie Chandler David M. Wilk LARSON & KING 30 E. Seventh Street, Suite 2800 Saint Paul, MN 55101

Attorneys for Fairview Health Services William Lawrence Davidson Paul C. Peterson LIND & JENSEN 901 Marquette Avenue, S., Suite 1300 Minneapolis, MN 55402 Attorneys for School and Johnson Trevor S. Helmers Elizabeth Jill Vieira RUPP & ANDERSON 333 S. Seventh Street, Suite 2800 Minneapolis, MN 55402 Attorneys for E.J.K. Michael A. Ponto Martin S. Chester Emily E. Chow FAEGRE & BAKER 90 S. Seventh Street, Suite 2200 Minneapolis, MN 55402-3901 and Asaf Orr Christopher F. Stoll NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102-0000

i

APPELLANT’S APPENDIX

INDEX

Civil Docket, USDC Court File No. 16-CV-03919 PAM/LIB ........................................ 1

Verified Complaint for Declaratory Relief and Injunction, USDC Court File No. 16-CV-03919 PAM/LIB, dated November 16, 2016 ........................... 11

Memorandum of Law & Order, USDC Court File No. 16-CV-03919 PAM/LIB, dated May 23, 2017 .............................................................................. 58

APP. 1

APP. 2

APP. 3

APP. 4

APP. 5

APP. 6

APP. 7

APP. 8

APP. 9

APP. 10

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Anmarie Calgaro,

Plaintiff,

vs.

St. Louis County; Linnea Mirsch,

individually and in her official

capacity as Interim Director of St.

Louis County Public Health and

Human Services; Fairview Health

Services, a Minnesota nonprofit

corporation; Park Nicollet Health

Services, a nonprofit corporation; St.

Louis County School District; Michael

Johnson, individually and in his

official capacity as Principal of the

Cherry School, St. Louis County

School District; and J.D.K.,

Defendants.

Court File No. _______________

VERIFIED COMPLAINT FOR

DECLARATORY RELIEF

AND INJUNCTION

DEMAND FOR JURY TRIAL

Plaintiff Anmarie Calgaro for her Complaint alleges as follows:

INTRODUCTION

As a parent and mother, Anmarie Calgaro seeks to have this Court

affirm her parental rights over her minor children. Minnesota common law

allows for the emancipation of minor children. However, while the law

provides no distinct process for emancipation, there is no process for a parent

CASE 0:16-cv-03919 Document 1 Filed 11/16/16 Page 1 of 47

APP. 11

2

to protect their fundamental parental rights to make decisions concerning the

care, custody and control of their children.

Under Minnesota Statute § 144.341, Minnesota’s “emancipation law”

for medical services, Ms. Calgaro has no statutory or common law cause of

action to (1) challenge Defendant St. Louis County Public Health and Human

Service’s eligibility determination to pay for and/or approve payment of

J.D.K.’s medical services at Park Nicollet and Fairview without parental

consent, nor (2) to challenge Defendants Park Nicollet’s and Fairview’s

determination of emancipation of J.D.K. to provide medical services without

parental consent. Meanwhile, as J.D.K.’s mother, she is denied access to his

medical records. Likewise, there is no statutory or common law cause of

action for Ms. Calgaro to fully or partially regain her parental rights over her

minor child.

In addition, based upon an attorney’s opinion letter regarding

emancipation, St. Louis County School District officials have refused her

access to common school district records, including class assignments, grades,

and the like of her minor child J.D.K. The letter of emancipation J.D.K.

obtained from a legal aid service agency is not a court order. The School

District provided Ms. Calgaro no notice or hearing prior to in terminating her

parental rights regarding J.D.K.’s education nor a hearing or process

afterwards to regain her parental rights over her minor child.


APP. 12

3

Meanwhile, her minor child J.D.K. received, and continues to receive,

major elective medical services provided by Park Nicollet ― and paid by St.

Louis County – for a sex change without her consent or court order of

emancipation. Similarly, Fairview prescribes narcotics to J.D.K. without her

consent and without a court order. As with the St. Louis School District, Park

Nicollet and Fairview Health Services did not provide Ms. Calgaro notice or a

hearing that resulted in the loss of her parental rights.

Ms. Calgaro seeks declaratory and injunctive relief and damages under

42 U.S.C. § 1983 for the loss of her right to due process which directly

affected her parental rights over her minor child. She seeks further relief

necessary to prevent the Defendants from offering any additional services to

her minor children without parental consent until she has had an

opportunity in state court to petition to restore all or part of her parental

rights before an emancipation is adjudicated before a court of law.

Finally, she demands that the Defendants provide her medical records,

educational records, and similar records of her minor child J.D.K. and

prevent the Defendants from refusing to provide the same records of her

minor children until legal processes described above are followed. Attorney

fees for the prosecution of this action are also demanded.


APP. 13

4

JURISIDICTION

1. The U.S. District Court has federal issue jurisdiction under 28

U.S.C. § 1331 and civil rights jurisdiction under 42 U.S.C. § 1983.

2. 42 U.S.C. § 1983 is a federal statute authorizing private persons

to bring civil rights lawsuits against defendants who operate under state law

and violate federal legal rights.

PARTIES

Plaintiff:

3. Anmarie Calgaro is a resident of St. Louis County and of the

State of Minnesota. Ms. Calgaro is the biological mother of her minor child,

17 year old son J.D.K. Ms. Calgaro has four additional minor children: J.D.K.

born on July 6, 1999; J.J.K. born on December 22, 2005; J.J.C. born on July 4,

2009; and a step-daughter M.R.C. born on October 10, 2003. As a parent, she

makes decisions regarding her minor children’s care, custody and

management. Ms. Calgaro has not relinquished any of her parental rights

over her minor children.

Defendants:

4. St. Louis County is a political subdivision of the State of

Minnesota. The County and its officials are responsible for creating,

adopting, approving, ratifying, and enforcing policies, customs, practices, or


APP. 14

5

procedures (or lack of procedures), which includes the lack of notice or

hearing to retain or restore the parental rights of Ms. Calgaro either before or

after a decision the County or County officials made concluding J.D.K, Ms.

Calgaro’s minor child, was emancipated. The County provided financial aid,

and/or approval thereof, to J.D.K. for living or medical expenses or both.

5. The St. Louis County’s policies, customs, practices, or procedures

(or lack of procedures), acting under the color of state law, were the moving

force behind the constitutional violations asserted in this Complaint.

6. St. Louis County Public Health and Human Services Department

(“Department of Public Health”) is a county agency which provides services in

the areas of Adults, Children & Families, Disabilities, Elderly, Financial

Assistance and Public Health. Under the facts of this case, St. Louis County

provided to the minor child of Ms. Calgaro, J.D.K., funds and/or approved

funding for medical services and other living expenses. As a county which

provides social services to minor children, it is responsible for adhering to its

policies, state law and federal law. The Department of Health and its officials

are responsible for creating, adopting, approving, ratifying, and enforcing

policies, customs, practices, or procedures (or lack of procedures), which

includes the lack of notice or hearing to retain or restore the parental rights

of Ms. Calgaro either before or after a decision the Department of Health

officials made concluding J.D.K, Ms. Calgaro’s minor child, was emancipated.


APP. 15

6

The Department of Health provided financial aid, and/or approval thereof, to

J.D.K. for living or medical expenses or both.

7. The Department of Public Health’s policies, customs, practices, or

procedures (or lack of procedures) were the moving force behind the

constitutional violations asserted in this Complaint.

8. Defendant Linnea Mirsch is the interim director of the St. Louis

County Health and Human Services Department. The director is the final

decision and policy maker for the Department.

9. Ms. Mirsch is an agent, representative, or employee of the

Department of Health. As such, she is acting under the color of state law and

is being sued in her individual and official capacity as the director of the

Department of Health.

10. Park Nicollet Health Services (“Park Nicollet”) is a Minnesota

non-profit corporation which provides medical services to the members of the

public. It receives state funding to provide medical services to the public. In

Minneapolis, Park Nicollet Minneapolis has a Gender Services Clinic. At this

clinic, Park Nicollet provides medical services to change sex identity. As a

medical service provider, Park Nicollet is responsible for adhering to its

policies, state law and federal law. Park Nicollet and its officials are

responsible for creating, adopting, approving, ratifying, and enforcing



APP. 16

7


of Ms. Calgaro either before or after a decision Park Nicollet officials made

concluding J.D.K, Ms. Calgaro’s minor child, was emancipated under

Minnesota Statute § 144.341. Park Nicollet provided medical services to

J.D.K. without the consent or knowledge of Ms. Calgaro.

11. Park Nicollet’s policies, customs, practices, or procedures (or lack

of procedures), acting under the color of state law, were the moving force

behind the constitutional violations asserted in this Complaint.

12. Fairview Health Services (“Fairview”) is a Minnesota non-profit

corporation which provides medical services to the members of the public.

Fairview receives state funding for services provided to the public. In

Hibbing, Fairview has a hospital known as Fairview Range Hospital. At the

Range Hospital, Park Nicollet provides medical services to the public. As a

medical service provider, Park Nicollet is responsible for adhering to its

policies, state law and federal law. Fairview and its officials are responsible

for creating, adopting, approving, ratifying, and enforcing policies, customs,

practices, or procedures (or lack of procedures), which includes the lack of

notice or hearing to retain or restore the parental rights of Ms. Calgaro either

before or after a decision Fairview officials made concluding J.D.K, Ms.

Calgaro’s minor child, was emancipated under Minnesota Statute § 144.341.


APP. 17

8

Fairview provided medical services to J.D.K. without the consent or

knowledge of Ms. Calgaro.

13. Fairview’s policies, customs, practices, or procedures (or lack of

procedures), acting under the color of state law, were the moving force behind

the constitutional violations asserted in this Complaint.

14. St. Louis County School District is a Minnesota school district

which includes J.D.K. as a student enrolled at Cherry School in post

secondary educational opportunities. The School District is a governmental

entity and receives state funding. The School Board is the final decision and

policy maker for the School District. The School District and its officials are

responsible for creating, adopting, approving, ratifying, and enforcing



of Ms. Calgaro either before or after a decision School District officials made

concluding J.D.K, Ms. Calgaro’s minor child, was emancipated. The School

District provided educational services to J.D.K., refused to provide Ms.

Calgaro with district documents regarding J.D.K.’s education and refused to

provide her an opportunity to participate in J.D.K.’s educational

opportunities.


APP. 18

9

15. The School District’s policies, customs, practices, or procedures

(or lack of procedures), acting under the color of state law, were the moving

force behind the constitutional violations asserted in this Complaint.

16. Michael Johnson is the principal at Cherry School within the St.

Louis County School District. As principal, Mr. Johnson is the final decision-

and policy maker directly affecting the school, including how to implement

district-wide policies for Cherry School.

17. Mr. Johnson is an agent, representative, or employee of the

School District. As such, he is acting under the color of state law and is being

sued in his individual and official capacity as the principal of Cherry School.

18. J.D.K. is a 17 year old son of Ms. Calgaro and a resident of St.

Louis County, State of Minnesota. J.D.K. is an interested party as it relates

to the allegations asserted in this Complaint.

BACKGROUND FACTS

I. J.D.K. is the biological child of Ms. Calgaro and remains a

minor under Minnesota law.

19. Ms. Calgaro is the biological mother and parent of J.D.K.

20. J.D.K. is Ms. Calgaro’s child.

21. Ms. Calgaro is also the mother and parent of additional minor

children, born after J.D.K.


APP. 19

10

22. Ms. Calgaro brings this lawsuit on behalf of her parental rights

regarding these children as well.

23. J.D.K. was born on July 6, 1999.

24. Park Nicollet’s and Fairview’s determination of emancipation

was based on the government’s willingness to pay for the medical services via

Defendant St. Louis County’s determination that J.D.K. was emancipated

and was eligible for such benefits.

25. There is no parental cause of action under Minnesota statute or

common law to challenge St. Louis County’s, Park Nicollet’s and Fairview’s

determinations which led to the government-paid medical services being

provided to J.D.K. without parental consent.

26. The Minnesota statute allowing the medical service provider to

determine emancipation does not provide a cause of action for a parent to

bring a lawsuit to restore full or partial parental rights.

27. Although Minnesota common law recognizes a minor child’s right

to petition for emancipation, there is no Minnesota common law cause of

action for a parent to bring in court to restore full or partial parental rights

once a child is emancipated for medical services without a court order.

28. Specifically, Minnesota Statute § 144.341, enacted in 1971,

authorizes medical service providers to determine whether a minor child such

as J.D.K. is emancipated without a court order:


APP. 20

11

Notwithstanding any other provision of law, any

minor who is living separate and apart from

parents or legal guardian, whether with or

without the consent of a parent or guardian and

regardless of the duration of such separate

residence, and who is managing personal

financial affairs, regardless of the source or

extent of the minor's income, may give effective

consent to personal medical, dental, mental and

other health services, and the consent of no

other person is required.

29. There is no corresponding right of a parent to regain or contest

the medical service providers’ determination of the minor’s consent to medical

services.

30. According to the statutes, Park Nicollet and Fairview in

determining J.D.K.’s emancipation took into account under “regardless of the

source or extent of minor’s income” that St. Louis County had determined

J.D.K’s eligibility for government-paid benefits.

31. Moreover, if the medical service provider had refused treating

J.D.K. as emancipated, J.D.K. was entitled under Minnesota common law to

proceed with a petition for emancipation.

32. Conversely, even though Ms. Calgaro as a mother objects to

J.D.K.’s life-changing operation and narcotic drug prescriptions, Ms. Calgaro

has no legal rights under Minnesota Statute § 144.341 to bring a cause of

action against the medical service providers Park Nicollet and Fairview to

restore her full or partial parental rights.


APP. 21

12

33. Further, Minnesota common law has never recognized a cause of

action for a parent to sue in district court to restore full or partial parental

rights after emancipation.

34. The medical service providers do not provide parental notice and

opportunity to be heard prior to or after the emancipation determination

terminating parental rights.

35. There is no parental corollary under Minnesota common law for

the minor child’s petition for a court order of emancipation.

36. A parent under Minnesota common law has no right to bring a

lawsuit after a medical service provider has determined a minor child is

“emancipated” under Minnesota Statute § 144.341 without a court order.

37. Since Minnesota Statute § 144.341 does not authorize a parent to

bring such a lawsuit, parents have no legal cause of action in court to

challenge a medical service provider’s determination of “emancipation” under

Minnesota Statute § 144.341.

38. J.D.K. who is a minor child has never obtained a court order of

emancipation.

39. J.D.K has never been involved in Child In Need of Protection or

Services (CHIPS) petition court proceedings, foster placement court

proceedings, child protection court proceedings nor child custody court

proceedings.


APP. 22

13

40. Meanwhile, Minnesota courts recognize that J.D.K. as a minor

child is not emancipated until a state court decides the minor child J.D.K. is

emancipated.

41. Minnesota Statute § 645.451 defines that an individual is an

emancipated adult at age 18.

42. Therefore, under Minnesota law, J.D.K. will be emancipated on

July 6, 2017.

43. Ms. Calgaro’s other minor children will reach the age of

emancipation later.

44. Pursuant to a paternity order dated April 14, 2008, Ms. Calgaro

has sole physical custody and joint legal custody of J.D.K. (Cty. of Benton v.

Justin Gerald Karl, et. al., Ct. File. No. 05-FA-07-3058, Findings of Fact,

Concl. of Law, Or. and Jdgmt, Benton Cty. Dist. Ct. (Apr. 14, 2008)).

45. J.D.K.’s father, Justin Karl, also has joint legal custody. Although

Ms. Calgaro and Karl are divorced, that has not interfered with their

communication regarding the welfare of their son J.D.K. Notably, Mr. Karl

has been informed about the instant litigation and the claims asserted and

has consented to Ms. Calgaro’s lawsuit.


APP. 23

14

II. Federal courts have recognized that parents have a

fundamental right to the care, custody and control of their

children.

46. As a parent, Ms. Calgaro has a fundamental right to make

decisions concerning the care, custody and control of her children.

47. In Slaven v. Engstrom, 710 F.3d 772, 779 (8th Cir. 2013), quoting

Troxel v. Granville, 530 U.S. 57,66 (2000) (plurality opinion), the Eighth

Circuit wrote, “the Due Process Clause of the Fourteenth Amendment

protects the fundamental right of parents to make decisions concerning the

care, custody, and control of their children.”

48. The United States Supreme Court in Quilloin v. Walcott, 434

U.S. 246, 255 (1978) wrote, “We have recognized on numerous occasions that

the relationship between parent and child is constitutionally protected.”

49. The United States Court of Appeals for the Eighth Circuit in

King v. Olmstead County, 117 F.3d 1065, 1067 (8th Cir. 1997) wrote, “We

have recognized a right to familial relations, which includes the liberty

interest of parents in the custody, care, and management of their children.”

50. Ms. Calgaro has always offered a home to J.D.K. She has also

communicated with J.D.K. about how he is always welcome in their home.

51. Ms. Calgaro has always made efforts to ensure a connection

between her and J.D.K.


APP. 24

15

52. Ms. Calgaro has never willingly or implicitly given up control or

custody of J.D.K.

53. In 2015, J.D.K. moved in with his father and then moved out.

Although J.D.K. refused to come back home, Ms. Calgaro has never

surrendered her parental rights over her son’s actions or in any other way

attempted to sever their relationship as mother and child.

54. St. Louis County, over Ms. Calgaro’s objections, has provided

and/or approved moneys to J.D.K. to allow him to live apart from his mother

Ms. Calgaro.

55. Meanwhile, Ms. Calgaro, at all times, has offered to J.D.K. to live

in her home.

III. A legal aid clinic provides J.D.K. with a “letter of

emancipation,” but fails to investigate the veracity of the

allegations asserted.

Name change efforts of J.D.K. highlight the lack of

a distinct process in emancipation law.

56. During this period, J.D.K. succeeded in obtaining legal advice

from Mid-Minnesota Legal Aid Clinic that he is emancipated without a court

order.

57. The lawyer’s “To Whom It May Concern” letter does not

accurately reflect the relationship between J.D.K. and Ms. Calgaro.

58. The letter reflects only what J.D.K. stated were “his” facts.


APP. 25

16

59. The Legal Aid Clinic did not contact Ms. Calgaro to investigate,

question, confirm or affirm the alleged “facts” asserted by J.D.K. about their

relationship.

60. There was no district court hearing regarding any “factual”

allegations asserted in the letter regarding Ms. Calgaro.

61. There was no administrative hearing regarding any “factual”

allegations asserted in the letter regarding Ms. Calgaro.

62. A district court did not issue a court order stating that J.D.K. was

emancipated.

63. There was no district court hearing that adjudicated J.D.K. as

emancipated.

64. There was no administrative order that adjudicated J.D.K. as

emancipated.

65. There was no administrative hearing that adjudicated J.D.K. as

emancipated.

66. Attached hereto as Exhibit A is a copy of the Mid-Minnesota

Legal Aid Clinic letter which states that J.D.K. is emancipated without a

court order.

67. Exhibit A has a filing date of October 8, 2015 in Stearns County

district court.


APP. 26

17

68. The filing is in regard to a hearing held on January 20, 2016,

wherein J.D.K. tried to change his name to E.J.K., a female name.

69. The order denying the attempted name change was issued on

April 15, 2016 and is attached as Exhibit B.

70. In the April 15, 2016 order, the district court noted that J.D.K.

had earlier attempted to change his name in Stearns County.

71. The court in that earlier preceding denied J.D.K.’s request noting

that:

the Petitioner failed to comply with the statute

authorizing change of name in Minnesota,

which requires an application for change of

name of a minor child be brought in the name of

that child by the parent or guardian. Minn.

Stat. §259.10.

72. In the April 15, 2016 order, the district court stated that “a legal

issue exists as to whether the juvenile Petitioner herein has a legal basis to

assert emancipation, and if so, how that would affect Petitioner’s entitlement

to bring an action as a juvenile for a change of name in the State of

Minnesota.” Exhibit B.

73. The district court stated that based upon the record before it

finding:

the lack of a parent or guardian bringing the

Application on behalf of the juvenile;


APP. 27

18

the lack of any Minnesota trial court

adjudication relative to emancipation;

the lack of proper notice upon the parents

of the juvenile Petitioner;

among other reasons.

74. The procedural jurisdictional defects would not allow the court to

resolve J.D.K.’s application for a name change and dismissed it without

prejudice. Exhibit B.

75. Ms. Calgaro was not present at the hearing. She did not, as the

order reflected, get notice of the hearing. See Exhibit B.

76. Meanwhile, Ms. Calgaro has made repeated attempts to retain or

regain her parental rights regarding J.D.K. She has repeatedly asked for

J.D.K.’s school records from defendant St. Louis School District officials,

including the Cherry School principal(s), but they refused her access to his

records and refused to communicate with her regarding matters affecting her

son.

77. Ms. Calgaro has made repeated attempts to retain or regain her

parental rights regarding J.D.K. with the Defendants St. Louis County and

St. Louis County Public Health and Human Services Department. Both

officials from these Defendants have refused to provide her with any

information regarding J.D.K. and in fact, have refuted further attempts by

her to speak with County officials.


APP. 28

19

78. Ms. Calgaro has made repeated attempts to retain or regain her

parental rights with officials defendants Fairview Health Services and Park

Nicollet Health Services to retain or to regain her parental rights regarding

J.D.K. They have refused and refuted any attempts by Ms. Calgaro to obtain

any information regarding medical services being provided to J.D.K.

79. Likewise, Ms. Calgaro sought legal counsel advice from private

attorneys about processes or procedures available to maintain, regain, or

restore her parental rights in full or in part; however, multiple counsel

identified that there is no distinct process in Minnesota to assert her rights

as it pertained to maintaining, regaining, or restoring parental rights against

the emancipation of her minor child under the circumstances described.

IV. In Minnesota, procedural due process is afforded to parents

regarding children on matters from marital dissolution

proceedings to child protection proceedings.

80. Minnesota has a strong legal tradition of protecting parental

rights.

81. For instance, in the context of marital dissolution, paternity, and

child protection, Minnesota provides parents due process – notice and an

opportunity to be heard – prior to or after terminating parental rights.

82. Moreover, procedural due process rights relating to parental

rights are statutorily codified in the contexts of marital dissolution, paternity,

and child protection.


APP. 29

20

83. Parents in the contexts of marital dissolution, paternity and child

protection receive statutorily-required notice and opportunity to be heard in

court prior to or after parental rights are terminated.

84. Minnesota Statute § 518.09, et seq., requires notice and hearing,

that is due process, relating to parental rights as part of a marital dissolution

proceeding.

85. Minnesota Statute § 257.57 requires notice and hearing, that is

due process, relating to parental rights as part of a paternity proceeding.

86. Minnesota Statute § 260C.141 requires notice and hearing, that

is due process, relating to parental rights as part of a child protection

proceeding.

V. Minors may obtain medical services, including sex change

procedures, based on a health service provider’s

determination of emancipation without notice or hearing

regarding the affected parental rights.

87. Minnesota Statute § 144.341, enacted in 1971, authorizes medical

service providers to determine whether a minor child such as J.D.K. is

emancipated without a court order:

144.341 LIVING APART FROM PARENTS AND

MANAGING FINANCIAL AFFAIRS.

Notwithstanding any other provision of law,

any minor who is living separate and apart

from parents or legal guardian, whether with

or without the consent of a parent or guardian

and regardless of the duration of such separate


APP. 30

21



extent of the minor's income, may give effective consent to personal medical, dental,

mental and other health services, and the

consent of no other person is required.

(Emphasis added).

88. There are no rules promulgated by the state or any other agency

regarding the implementation of Minnesota Statute § 144.341.

89. Under § 144.341, there is no provision providing for a process or

procedure to give notice to the minor’s parent or parents before or after

“effective consent” is determined, regarding their protected right to the care,

custody, and control of their child.

90. Under § 144.341, there is no provision providing for a process or

procedure to provide the minor’s parent or parents a hearing, before or after

“effective consent” is determined, regarding their protected right to the care,

custody, and control of their child.

VI. There is no distinct process to challenge, retain or restore

parental rights after an emancipation determination under

Minnesota Statute § 144.341 concerning medical services or

under common law regarding all matters for which a

minor’s emancipation determination is used.

91. Procedural due process rights relating to parental rights after a

minor child’s emancipation for medical services under Minnesota Statute §

144.341 are not statutorily codified.


APP. 31

22

92. Minnesota common law does not recognize a parental cause of

action to restore partial or full parental rights in an emancipation context.

93. Notably, the Minnesota judicial website recognizes and states

that there is no “specifically defined process” for a minor to become

emancipated:

Minnesota Statutes define who is a minor and who is

an adult at MN Statutes § 645.451. Generally, being

"emancipated" means that a minor has the same

legal responsibilities as an adult. Minnesota Statutes

do not specifically define a process by which a minor

can become emancipated.

Courts will review "Petitions for Emancipation" and

decide on a case-by-case basis if there is sufficient

evidence to find that a minor may live

"independently" of his/her parents or guardian.

However, the courts do not publish forms or

instructions to petition for "emancipation." The Legal

Fact Sheet on Emancipation published by Mid-

Minnesota Legal Aid explains the basics on this area

of law. To get legal advice on your situation, you

should talk with a lawyer.1

(Original emphasis).

94. Notably, the Minnesota judicial website does not identify a

corollary process for a parent to petition for a full or partial restoration of

parental rights in the context of an emancipation application or petition in

1 Website: http://www.mncourts.gov/Help-Topics/Emancipation.aspx

(emphasis added).


APP. 32

23

the context of an agency or entity recognizing the emancipation of a minor in

the absence of any judicial review process as outlined in the website.

95. In other words, Minnesota courts recognize that a “petition for

emancipation” – and the due process for the parent(s) relating thereto – is

necessary prior to terminating parental rights in the context of a minor child

being emancipated.

96. However, the state legislature, unlike in the subjects areas of

marital dissolution, paternity and child protection, have not statutorily

codified the procedural due process rights of parents with respect to

emancipation of a minor child or with respect to emancipation as determined

under Minnesota Statute § 144.341 by finding a minor’s giving of “effective

consent.”

97. Minnesota Statute § 144.341, as to medical treatment for an

emancipated minor child without a court order, terminates parent rights and

provides no procedure before nor after to retain, regain, or restore parental

rights:

Notwithstanding any other provision of law,

any minor who is living separate and apart

from parents or legal guardian, whether with

or without the consent of a parent or guardian

and regardless of the duration of such separate



extent of the minor's income, may give effective

consent to personal medical, dental, mental and


APP. 33

24

other health services, and the consent of no


98. Minnesota Statute § 144.341 does not provide Minnesota parents

with any procedural due process rights prior to or after a minor child being

emancipated for the purposes of medical, dental, mental, and other health

services.

99. Neither Park Nicollet nor Fairview provided notice and

opportunity to be heard to Ms. Calgaro to participate in or challenge their

emancipation decisions regarding J.D.K. before or after the termination of

her parental rights.

VII. The County, Park Nicollet and Fairview determined J.D.K.

is emancipated under Minnesota Statute § 144.341 without

parental consent and without a court order and denied

Plaintiff access to J.D.K.’s medical records.

100. J.D.K., without parental consent, succeeded in obtaining

medical services from Park Nicollet and Fairview.

101. J.D.K., without parental consent, succeeded in obtaining medical

services in the form of prescription drugs, including narcotics, from Fairview,

and succeeded in obtaining medical services to change sex from a male to a

female from Park Nicollet.

102. St. Louis County is paying for and/or approving payment for

J.D.K.’s medical services through the Department of Health.


APP. 34

25

103. The governmental moneys compensate Fairview and Park

Nicollet for the medical services provided to J.D.K.

104. Attached hereto as Exhibit C is a copy of Park Nicollet

Minneapolis Gender Services letter which states that J.D.K. is receiving

medical services to change sex from a male to a female.

105. Park Nicollet and Fairview are treating J.D.K. as an adult with

exclusive rights to information and decision-making regarding the medical

procedures and services J.D.K. is receiving.

106. Elective medical services for a sex change for a minor child is a

life-changing event.

107. Seeking elective medical services for a sex change by minor child

is a life-changing decision.

108. Park Nicollet did not contact Ms. Calgaro about J.D.K.’s request

or consent for a sex change.

109. Park Nicollet and Fairview did not sufficiently inquire about the

sincerity and/or veracity of the minor child J.D.K..

110. Without any investigation or inquiry regarding the consent of

J.D.K. for elective medical services, neither Park Nicollet nor Fairview can

assert that either entity rendered the medical services or procedures in good

faith under Minnesota Statute § 144.345.


APP. 35

26

111. Further, Park Nicollet and Fairview have determined that

medical records will not be provided to Ms. Calgaro under Minnesota Statute

§ 144.346 governing when medical professions may inform parents about

medical treatment where the failure to inform the parent would jeopardize

the health of the minor child:

The professional may inform the parent or legal

guardian of the minor patient of any treatment given

or needed where, in the judgment of the professional,

failure to inform the parent or guardian would

seriously jeopardize the health of the minor patient.

112. Therefore, under the circumstances of this case, Ms. Calgaro has

no access to J.D.K.’s medical records from Park Nicollet, nor Fairview.

113. In 2016, and through the date of filing of this Complaint, Ms.

Calgaro has requested J.D.K.’s medical records from Park Nicollet and has

asked to participate in J.D.K.’s medical decisions.

114. Park Nicollet refused and refuses Ms. Calgaro’s requests because

Park Nicollet has determined J.D.K. is emancipated.

115. There is no court order granting J.D.K. emancipation that would

allow him to give effective consent for medical services, particularly that of a

sex change.

116. Park Nicollet has provided and continues to provide medical

services to J.D.K. without Ms. Calgaro’s consent.


APP. 36

27

117. Moreover, Park Nicollet does not provide a process in which Ms.

Calgaro can regain or otherwise retain her parental rights over the care,

custody and control of her minor child J.D.K. regarding the medical services

Park Nicollet is providing J.D.K.

118. In 2016 and through the date of filing this complaint, Plaintiff

has requested J.D.K.’s medical records from Fairview and asked to

participate in J.D.K.’s medical decisions, but Fairview refuses because

Fairview has determined J.D.K. is emancipated.

119. There is no court order granting J.D.K. emancipation that would

allow him to give effective consent for medical services, particularly that of

prescribed narcotics.

120. Fairview has provided and continues to provide medical services

to J.D.K. without Ms. Calgaro’s consent.

121. Moreover, Fairview does not provide a process in which Ms.

Calgaro can regain or otherwise retain her parental rights over the care,

custody and control of her minor child J.D.K. regarding the medical services

Fairview is providing J.D.K.

122. During this period, J.D.K., without parental consent, has also

succeeded in convincing St. Louis County that he is emancipated without

court order for the purposes of receiving government-paid medical benefits.


APP. 37

28

123. St. Louis County determined, without a hearing or notice to Ms.

Calgaro, that J.D.K. is emancipated.

124. It is the practice and custom of St. Louis County to determine

that a minor is emancipated without notice to or a hearing for the minor

child’s parents.

125. St. Louis County’s determination of J.D.K. as emancipated has

effectively terminated the parental rights of Ms. Calgaro.

126. Furthermore, the St. Louis County is providing or approving

other governmental moneys to J.D.K. related to living expenses.

127. St. Louis County is treating J.D.K. as an adult with exclusive

rights to information and decision-making.

128. Therefore, Ms. Calgaro has no access to his county records or

legal authority to affect J.D.K.’s decision-making with the county.

129. In 2016, and through the date of filing this complaint, Ms.

Calgaro has made requests to the County to access county records and to

participate in J.D.K.’s decision-making with the County.

130. The County refuses Ms. Calgaro’s requests to participate and for

access to J.D.K.’s county records.

131. St. Louis County’s determination that J.D.K. was eligible for

government-paid medical services was the cause of why Park Nicollet and


APP. 38

29

Fairview determined that J.D.K. was emancipated for the purposes of

providing medical services.

132. St. Louis County provides no process of notice to or hearing for

Ms. Calgaro, as the biological mother and parent of J.D.K., to regain, retain,

or restore in full or in part her parental rights.

133. In summary, without parental consent and without a court order

adjudicating emancipation, St. Louis County, Park Nicollet and Fairview

paid for and provided medical services to J.D.K. and denies Plaintiff access to

J.D.K.’s records.

VIII. The School District has determined J.D.K. is emancipated

without parental consent and without a court order and

denied Plaintiff access to J.D.K.’s educational records.

134. In 2016, Ms. Calgaro requested the School District to allow her to

participate in J.D.K.’s educational decisions and to have access to J.D.K.’s

educational records.

135. The School District has denied Ms. Calgaro’s request to

participate in J.D.K.’s educational decisions and has denied access to his


136. At about the same time, Ms. Calgaro requested the principal of

Cherry School an opportunity to participate in J.D.K.’s educational decisions

and to have access to J.D.K.’s school records.

137. The principal of Cherry School refused Ms. Calgaro’s requests.


APP. 39

30

138. The School District determined J.D.K. emancipated without Ms.

Calgaro’s knowledge or parental consent.

139. The School District did not give notice or hold a hearing when it

determined J.D.K. emancipated.

140. The determination by the School District effectively terminated

the parental rights of Ms. Calgaro.

141. The School District is aware of parental rights.

142. The School District is aware that parental rights are protected

under the U.S. Constitution.

143. It is the policy, practice, and custom of the School District not to

give notice or hold a hearing with the parent(s) present when it determines a

minor child is emancipated.

144. Further, the School District does not have a process in which a

parent may seek to retain or restore in full or in part their parental rights.

145. Ms. Calgaro was not provided a process in which she was given

notice or an opportunity to have a hearing to retain or restore in full or in

part her parental rights over J.D.K.

146. Notably, there is no statute that allows the School District to

make an emancipation decision for a minor, to refuse parents access to school

records or to refuse parents an opportunity to participate in the decision-

making of the educational opportunities of a minor child.


APP. 40

31

147. Unlike the medical service providers, described above, the School

District has no statute to rely on for its emancipation decision.

148. The School District’s policy does not provide parents with notice

and opportunity to be heard prior to or after school district emancipation

without a court order.

149. The School District did not obtain nor have in hand a court order

prior to declaring J.D.K. emancipated.

150. Further, the common law provides no right for Ms. Calgaro to

petition the School District to restore full or partial parental rights after the

School District’s determination of emancipation of J.D.K.

151. Likewise, the common law provides no right for Ms. Calgaro to

petition the court to restore full or partial parental rights before the School

District determined J.D.K. as emancipated.

152. So, Ms. Calgaro, as the biological mother and parent of J.D.K.,

has no recourse to the courts prior to or after the school district’s

emancipation determination.

153. Likewise, the principal of Cherry School is an agent,

representative, or employee of the School District.

154. The principal implements the policies, practices, and customs of

the School District as it would be applied to the Cherry School.


APP. 41

32

155. Moreover, the principal is also provided some discretion to

decision-making regarding matters as it affects the school and, therefore, acts

as the final-decision maker regarding policies, practices, and customs at

Cherry School.

156. The principal of Cherry School interacts with students and

parents on a daily basis.

157. The principal is well aware of parental rights in the context of

educational services and decision-making for minor children.

158. The principal understands that parental rights are protected

under the U.S. Constitution.

159. The principal of Cherry School determined that J.D.K. was

emancipated.

160. The principal did so without notice or a hearing involving Ms.

Calgaro as J.D.K.’s parent and biological mother.

161. The principal’s determination effectively terminated the parental

rights of Ms. Calgaro.

162. It is the policy, practice and custom of the principal of Cherry

School not to give notice or hold a hearing with the parents present when the

principal determines a minor child is emancipated.

163. Further, the principal does not have a process in which a parent

may seek to retain or restore in full or in part their parental rights.


APP. 42

33

164. Ms. Calgaro was not provided a process in which she was given

notice or an opportunity to have a hearing to retain or restore in full or in

part her parental rights over J.D.K.

165. Notably, there is no statute that allows the principal of a school

to make an emancipation decision for a minor, to refuse parents access to

school records or to refuse parents an opportunity to participate in the

decision-making of the educational opportunities of a minor child.

166. The school principal’s policy does not provide parents with notice

and opportunity to be heard prior to or after school district emancipation

without a court order.

167. The school’s principal did not obtain nor have in hand a court

order declaring J.D.K. emancipated.

168. Further, the common law provides no right for the Ms. Calgaro to

petition the principal of a school to restore full or partial parental rights after

the principal’s determination of emancipation of J.D.K.

169. Likewise, the common law provides no right for Ms. Calgaro to

petition the court to restore full or partial parental rights before the principal

determined J.D.K. as emancipated.

170. So, Ms. Calgaro, as the biological mother and parent of J.D.K.,

has no recourse to the courts prior to or after a school principal’s

emancipation determination.


APP. 43

34

171. The School District has violated Plaintiffs’ federal due process

rights to notice and an opportunity to be heard.

COUNT I

The Defendants violated Ms. Calgaro’s protected rights under the Due

Process Clause of the U.S. Constitution Fourteenth Amendment.

172. All of the above paragraphs are incorporated herein as if they

were stated in their entirety.

173. This complaint is a 42 U.S.C. § 1983 civil rights action based on

the U.S. Constitution Fourteenth Amendment Due Process Clause seeking a

declaratory judgment and injunction enjoining defendants from acting as if

minor child J.D.K. is emancipated without a court order until Plaintiff as the

minor’s mother is afforded an opportunity by statute to petition in state court

to restore her partial or full parental rights.

174. The Fourteenth Amendment of the United States Constitution

states:

[N]or shall any state deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.

175. Under 42 U.S.C. § 1983, the statutory provisions provide persons

a federal cause of action based on persons operating under color of state law

violating of federal law:


APP. 44

35

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress….

176. Courts have recognized that the Due Process Clause of the U.S.

Constitution protects the fundamental right of parents to make decisions

concerning the care, custody and control of their children, as expressed for

instance in Santosky v. Kramer, 455 U.S. 745, 753 (1982) and Quilloin v.

Walcott, 434 U.S. 246, 255 (1978).

177. Courts have recognized that the right to familial relations

includes the liberty interest of parents in the custody, care and control of

their children, as expressed for instance in King v. Olmstead County, 117

F.3d 1065, 1067 (8th Cir. 1997) and Slaven v. Engstrom, 710 F.3d 772, 779

(8th Cir. 2013) quoting Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality

opinion).

178. Parental due process rights regarding termination of parental

rights are clearly established.


APP. 45

36

179. At all times, the Defendants knew that their respective

determination of J.D.K.’s emancipation effectively terminated the protected

constitutional parental rights of Ms. Calgaro.

180. At all times, the Defendants knew that their respective

determination of J.D.K’s emancipation without notice nor a hearing before or

after their decision violated the federal due process rights of Ms. Calgaro.

181. At all times, the Defendants have refused to provide Ms. Calgaro

notice and an opportunity to be heard to retain or to restore her parental

rights in full or in part over her minor child J.D.K.

182. At all times, the Defendants purposefully failed to provide Ms.

Calgaro notice or an opportunity to be heard before they determined J.D.K.

emancipated.

183. Parental rights are considered a protected fundamental right

and, specifically, a “liberty” interest under the Fourteenth Amendment

which, therefore, may not be terminated without “due process of law.”

184. A governmental determination of emancipation effectively

terminates the custody and control decision-making of a parent or parents.

185. The decisions concerning the custody and control over a minor

child involve parental rights protected under the U.S. Constitution.


APP. 46

37

186. A decision that has the legal effect of granting a minor child

emancipation, effectively terminating parental rights of the child’s parent(s),

requires notice to the parent(s).

187. A decision that has the legal effect of granting a minor child

emancipation, effectively terminating parental rights of the child’s parent(s),

requires a hearing involving the parent(s).

188. Under Minnesota Statute § 144.341, there is no provision

allowing Ms. Calgaro, as J.D.K.’s biological mother and parent to restore in

full or in part her parental rights protected under the U.S. Constitution

regarding medical services the Defendants Department of Public Health,

Fairview Health Services, and Park Nicollet Health Services have provided

and continue to provide to J.D.K. without parental consent.

189. Under Minnesota common law, there is no private cause of action

allowing Ms. Calgaro, as J.D.K.’s biological mother and parent to restore in

full or in part her parental rights protected under the U.S. Constitution to

challenge the St. Louis County School District’s and Cherry School’s

determination and enforcement of the “emancipation letter” of the Mid-

Minnesota Legal Aid clinic or J.D.K.’s declaration that he is emancipated.

190. Under Minnesota common law, there is no private cause of

action allowing Ms. Calgaro, as J.D.K.’s biological mother and parent to

restore in full or in part her parental rights protected under the U.S.


APP. 47

38

Constitution to regain or restore in full or in part, her parental rights over

J.D.K. that the St. Louis County School District and Cherry School have

refused to recognize by their respective determination and enforcement

actions of the “emancipation letter” of the Mid-Minnesota Legal Aid clinic or

J.D.K.’s declaration that he is emancipated.

191. This complaint based on the U.S. Constitution Fourteenth

Amendment Due Process Clause seeks a declaratory judgment and injunction

enjoining all defendants from acting as if any of Ms. Calgaro’s children are

emancipated without a court order until Ms. Calgaro has an opportunity to

petition the state court to restore full or partial parental rights.

192. Ms. Calgaro’s parental rights are fundamental rights recognized

and protected under the U.S. Constitution.

193. As fundamental rights, Ms. Calgaro’s parental rights cannot be

terminated without procedural due process under the U.S. Constitution

Fourteenth Amendment Due Process Clause.

194. St. Louis County, Park Nicollet, Fairview, the School District,

and their respective officials, acting under the color of state law and their

own policies, customs, or usages by emancipating J.D.K., without a prior

court order of emancipation, have subjected Ms. Calgaro to the deprivation of

her procedural due process rights secured by the U.S. Constitution prior to

and after the termination of her parental rights by the respective Defendants.


APP. 48

39

195. The Defendants’ actions, individually and collectively, have

violated Ms. Calgaro’s procedural due process rights under the Due Process

Clause of the Fourteenth Amendment to the U.S. Constitution.

196. Ms. Calgaro is entitled to a court process – notice and

opportunity to be heard – prior to or after termination, or both, concerning

her parental rights.

197. In this lawsuit relating to medical and educational services

provided to a minor, Ms. Calgaro claims that the Defendants violate her

federal procedural Due Process Clause rights because she has no statutory or

common law cause of action in court (1) to challenge Defendant St. Louis

County Public Health and Human Service’s eligibility determination to pay

for J.D.K.’s medical services at Park Nicollet and Fairview and deny parental

access to medical records without a court order; (2) to challenge Defendant

Park Nicollet’s and Defendant Fairview’s determination of emancipation of

J.D.K. to provide medical services and deny access to medical records without

a court order; and (3) to challenge the School District’s and the principal of

Cherry School determinations of emancipation of J.D.K. to provide

educational services and deny access to educational records without a court

order.

198. Park Nicollet’s and Fairview’s determination of emancipation

without a court order was based upon the government’s willingness to pay for


APP. 49

40

the medical services via Defendant St. Louis County’s determination that

J.D.K. was eligible for such benefits.

199. There is no parental cause of action under Minnesota statute or

common law to challenge St. Louis County’s, Park Nicollet’s, and Fairview’s

emancipation determinations without a court order which led to the

government-paid medical services being provided to J.D.K. without parental

consent.

200. The Minnesota statute § 144.341, allowing the medical service

provider to determine emancipation, does not provide a cause of action for a

parent to bring a lawsuit to restore full or partial parental rights.

201. Although Minnesota common law recognizes a minor child’s right

to petition for emancipation, there is no Minnesota common law cause of

action for a parent to bring in court to restore full or partial parental rights

once a child is emancipated by Defendants without a court order.

202. Specifically, Minnesota Statute § 144.341 authorizes medical

service providers to determine whether a minor child such as J.D.K. is

emancipated without a court order:

Notwithstanding any other provision of law, any minor who

is living separate and apart from parents or legal guardian,

whether with or without the consent of a parent or

guardian and regardless of the duration of such separate

residence, and who is managing personal financial affairs,

regardless of the source or extent of the minor's income,

may give effective consent to personal medical, dental,


APP. 50

41

mental and other health services, and the consent of no


203. According to the state statute, Park Nicollet and Fairview in

determining J.D.K.’s emancipation took into account under “regardless of the

source or extent of minor’s income” that St. Louis County had determined

J.D.K’s eligibility for government-paid benefits.

204. Moreover, if the medical service provider had refused treating

J.D.K. as emancipated, J.D.K. was entitled under Minnesota common law to

proceed with a petition for emancipation.

205. Conversely, even though Ms. Calgaro as a mother objects to

J.D.K. being provided such medical services without court order and without

parental consent, Ms. Calgaro has no legal rights under Minnesota Statute §

144.341 to bring a cause of action to restore her full or partial parental rights

prior to or after the Defendants’ determinations of emancipation under state

law.

206. Further, Minnesota common law has never recognized a cause of

action for a parent to sue in district court to restore full or partial parental

rights after a determination of emancipation under Minnesota Statute §

144.341 or otherwise.

207. There is no parental corollary under Minnesota common law for

the minor child’s petition for a court order of emancipation.


APP. 51

42

208. A parent under Minnesota common law has no right to bring a

lawsuit after a Defendant has determined a minor child is “emancipated”

under Minnesota Statute § 144.341 or otherwise without a court order.

209. Since Minnesota Statute § 144.341 does not authorize a parent to

bring such a lawsuit, parents have no legal cause of action in court to

challenge the government’s and medical service provider’s determination of

“emancipation” under Minnesota Statute § 144.341 to provide medical

services to a minor child.

210. Further, Plaintiff has requested from the School District to

participate in J.D.K.’s educational decisions and have access to J.D.K.’s


211. The School District has denied Plaintiffs’ request to participate in

J.D.K.’s educational decisions and denied Plaintiff access to J.D.K.’s


212. The School District has emancipated J.D.K. without parental

consent and without a court order.

213. However, unlike the medical service providers, the School

District has no statute to rely as its legal authority for its emancipation

decision.


APP. 52

43

214. The School District’s policy does not provide parents with notice

and opportunity to be heard prior to or after school district determines

emancipation without a court order of emancipation.

215. The common law provides no right for the Plaintiff to petition to

restore full or partial parental rights after the school district’s determination

of emancipation.

216. So, Ms. Calgaro has no recourse to the courts prior to or after

school district emancipation to restore partial or full parental rights.

217. The School District has violated Ms. Calgaro’s federal due process

rights to notice and opportunity to be heard.

218. Under these circumstances, parents like the Plaintiff have no

notice nor opportunity to be heard pre-deprivation nor post-deprivation.

219. Ms. Calgaro’s federal due process rights have been violated by

Defendants.

220. The Defendants’ violative actions have caused damages to Ms.

Calgaro including loss of wages, personal injury and emotional distress.

221. The Defendants’ violative actions have caused damages to Ms.

Calgaro in an amount exceeding $50,000.


APP. 53

44

COUNT II

DECLARATORY JUDGMENT



223. The Court has inherent or statutory authority to issue

declaratory judgments.

224. Ms. Calgaro seeks a declaratory judgment declaring that her due

process rights under the U.S. Constitution Due Process Clause were violated

by Defendants because she has no statutory or common law cause of action to

challenge in state court the Defendants’ determinations of emancipation

without a court order which led to the medical, educational and other services

being provided and denial of access to medical, educational and other records

without parental consent and without a court order.

COUNT III

INJUNCTION



226. The Court has legal authority to issue injunctions.

227. The Ms. Calgaro petitions for an injunction enjoining the

Defendants from providing any additional services to the minor children of

Ms. Calgaro without parental consent until she has had an opportunity in


APP. 54

45

state court to petition to restore all or partial parental rights or until a state

court order of emancipation is issued.

228. Additionally, Ms. Calgaro petitions for an injunction requiring

the Defendants to provide medical, educational and other records of the

minor children to Ms. Calgaro until she has had an opportunity in state court

to petition to restore all or partial parental rights or until a state court order

of emancipation is issued.

DEMAND FOR JURY TRIAL

229. Plaintiff Anmarie Calgaro also demands a jury trial regarding

the allegations asserted in the instant Complaint.

PRAYER FOR RELIEF

The Plaintiff Anmarie Calgaro prays for the following relief:

1. a 42 U.S.C. § 1983 judgment awarding nominal damages and

damages against each Defendant in an amount exceeding

$75,000;

2. a declaratory judgment declaring that Ms. Calgaro’s due process

rights under the U.S. Constitution Due Process Clause were

violated when the Defendants treated J.D.K as emancipated

without a court order and provided medical, educational and

other services without parental consent and refused parental


APP. 55

46

access to medical, educational and other records while Minnesota

statues, common law and Defendants’ policies provided no cause

of action to Ms. Calgaro to petition to restore full or partial

parental rights;

3. an injunction enjoining the Defendants from providing any

additional medical, educational or other services to any of the

minor children of Ms. Calgaro deemed emancipated by

Defendants without Ms. Calgaro’s consent until she has had an

opportunity in state court to petition to restore all or partial

parental rights or until a state court order of emancipation is

issued and requiring the Defendants to provide medical,

educational and other records of any of Ms. Calgaro’s minor

children deemed emancipated by Defendants to Ms. Calgaro until

she has had an opportunity in state court to petition to restore all

or partial parental rights or a state court order of emancipation is

issued;

4. an award under 42 U.S.C. § 1988 and other applicable laws

against each Defendant of attorney’s fees, costs, witness fees,

expenses, etc.; and

5. any other legal or equitable relief which the Court deems just to

award.


APP. 56

47

Dated: November 16, 2016 /s/Erick G. Kaardal

Erick G. Kaardal, 229647

Mohrman, Kaardal & Erickson, P.A.

150 South Fifth Street, Suite 3100

Minneapolis, Minnesota 55402

Telephone: 612-341-1074

Facsimile: 612-341-1076

Email: [email protected]

Attorneys for Petitioner

VERIFICATION OF PETITION

I sign the petition as a petitioner. I declare under penalty of perjury

that the foregoing is true and correct to the best of my knowledge.

Dated: November 16, 2016 /s/Anmarie Calgaro

Anmarie Calgaro


APP. 57

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Anmarie Calgaro, Case No. 16-cv-3919 (PAM/LIB) Plaintiff,

v. MEMORANDUM AND ORDER St. Louis County, Linnea Mirsch, Fairview Health Services, Park Nicollet Health Services, St. Louis County School District, Michael Johnson, and E.J.K.1, Defendants. This matter is before the Court on Plaintiff Anmarie Calgaro’s Motion for

Summary Judgment, Defendants St. Louis County’s and Linnea Mirsch’s Motions for

Judgment on the Pleadings and Summary Judgment, and Defendants Park Nicollet Health

Services’, Fairview Health Services’, St. Louis County School District’s, Michael

Johnson’s, and E.J.K.’s Motions to Dismiss. For the following reasons, Defendants’

Motions are granted and Calgaro’s Motion is denied.

BACKGROUND

E.J.K. is a 17-year-old transgender youth who identifies as female. (Compl.

(Docket No. 1) ¶¶ 18, 32, 104, Ex. C.) She will turn 18 in less than two months. (Id.

¶ 3.) Calgaro is E.J.K.’s biological mother and has sole physical and joint legal custody

of E.J.K. (Id. ¶¶ 3, 44.) 1 Although referred to as J.D.K. in Calgaro’s Complaint, the Court uses the name, initials, and pronouns consistent with E.J.K.’s female gender identity.

CASE 0:16-cv-03919-PAM-LIB Document 85 Filed 05/23/17 Page 1 of 14

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Sometime in 2015, E.J.K. moved out of Calgaro’s home in St. Louis County,

Minnesota and moved in with her biological father in St. Cloud. (Id. ¶¶ 3, 53.) Shortly

thereafter, E.J.K. moved out of her father’s home and began living with various family

and friends. (Id. ¶ 53.) Since moving out of her father’s home, E.J.K. has refused to

move back in with Calgaro. (Id.) Calgaro claims that she has always offered a home to

E.J.K. (Id. ¶ 50.)

E.J.K. currently lives on her own in St. Louis County. (Id. ¶ 18.) She attends the

Cherry School in the St. Louis County School District (the “School District”) and

enrolled herself in post-secondary educational opportunities at a local college. (Id. ¶ 14.)

On June 29, 2015, E.J.K. consulted a lawyer with Mid-Minnesota Legal Aid who

provided her with a letter that concluded she was legally emancipated under Minnesota

law. (Compl. Ex. A.) E.J.K. has never obtained a court order of emancipation. (Id.

¶ 38.)

Sometime before January 15, 2016, Park Nicollet and Fairview began providing

E.J.K. with medical treatment for a gender transition to the female gender. (Id. ¶¶ 10, 12,

Ex. C.) Calgaro alleges that St. Louis County is providing E.J.K. with general

government assistance and paying for these medical services. (Id. ¶¶ 54, 102.)

Sometime in 2016, Calgaro requested that Fairview and Park Nicollet provide her with

E.J.K.’s medical records, but they refused. (Compl. ¶¶ 113, 114, 118.) Also in 2016,

Calgaro requested that the School District allow her to participate in E.J.K.’s educational

decisions and to have access to E.J.K.’s educational records, but the School District

refused. (Id. ¶¶ 134, 135.)


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3

On November 16, 2016, Calgaro filed this lawsuit against seven Defendants:

(1) St. Louis County; (2) Linnea Mirsch, individually and in her official capacity as

Interim Director of St. Louis County Public Health and Human Services; (3) Fairview;

(4) Park Nicollet; (5) the School District; (6) Michael Johnson, individually and in his

official capacity as Principal of the Cherry School (“Principal Johnson”); and (7) E.J.K.

(collectively, “Defendants”). Calgaro is suing Defendants under 42 U.S.C. § 1983 for

allegedly violating her Fourteenth Amendment procedural due process rights. Calgaro

alleges that Defendants terminated her constitutionally protected parental rights without

due process by determining E.J.K. emancipated without notifying her, providing E.J.K.

with medical services and government assistance without Calgaro’s consent, and refusing

to provide Calgaro with E.J.K.’s medical, governmental, and educational records.

Twelve days after filing a Complaint, Calgaro filed her Motion for Summary

Judgment. Park Nicollet, Fairview, the School District, Principal Johnson, and E.J.K.

each subsequently filed Motions to Dismiss. St. Louis County and Mirsch also filed a

Motion for Judgment on the Pleadings and a Motion for Summary Judgment.

DISCUSSION

A. Motions to Dismiss and the Motion for Judgment on the Pleadings

To survive a motion to dismiss for failure to state a claim, a complaint “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 12(b)(6). A claim

bears facial plausibility when it allows the Court “to draw the reasonable inference that


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the defendant is liable for the misconduct alleged.” Id. When evaluating a motion to

dismiss, the Court must accept factual allegations as true, Gomez v. Wells Fargo Bank,

N.A., 676 F.3d 655, 660 (8th Cir. 2012), but it need not give effect to those that simply

assert legal conclusions, McAdams v. McCord, 584 F.3d 1111, 1113 (8th Cir. 2009).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements,” are insufficient to support a claim. Iqbal, 556 U.S. at 678. The same

standard that applies to a motion to dismiss under Rule 12(b)(6) applies to a motion for

judgment on the pleadings under Rule 12(c). Haney v. Portfolio Recovery Assocs.,

L.L.C., 837 F.3d 918, 924 (8th Cir. 2016) (per curiam).

1. Emancipation

Throughout her 229-paragraph Complaint, Calgaro repeatedly alleges that

Defendants “determined [E.J.K.] emancipated.” (See, e.g., Compl. ¶ 138.) This

allegation is distracting for two reasons. First, Defendants legally cannot emancipate

E.J.K. In Minnesota, emancipation is an act of the parent and need not be in writing or in

express words. In re Fiihr, 184 N.W.2d 22, 25 (Minn. 1971) (citation omitted).

“Whether a child has been emancipated must be determined largely upon the peculiar

facts and circumstances of each case and is ordinarily a question for the jury.” Id.

Calgaro does not dispute this. (See Compl. ¶ 40 (“Minnesota courts recognize that

[E.J.K.] as a minor child is not emancipated until a state court decides the minor child

[E.J.K.] is emancipated.”).) Calgaro also admits that E.J.K. has not obtained a court

order of emancipation. (Id. ¶ 38.) Defendants therefore did not emancipate E.J.K. and

Calgaro continues to have sole physical and joint legal custody of E.J.K. Second, even


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assuming Defendants determined E.J.K. emancipated—as the Court must do at this stage

of the litigation—Defendants’ emancipation determinations did not terminate Calgaro’s

parental rights. Only a court order can do so. Absent that, Calgaro’s parental rights over

E.J.K. remain intact. The Court will therefore not further entertain Calgaro’s

characterization of Defendants’ actions as “determining E.J.K. emancipated,” except

when necessary to address one of Calgaro’s claims against St. Louis County.

2. Fairview and Park Nicollet

To state a claim under § 1983, Calgaro must establish that Fairview and Park

Nicollet deprived her of a right secured by the Constitution or laws of the United States

and that the deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co.

v. Sullivan, 526 U.S. 40, 49 (1999). Calgaro alleges that Fairview and Park Nicollet

deprived her of her constitutionally protected parental rights without due process by

providing E.J.K. with medical services without Calgaro’s consent and refusing to provide

Calgaro with E.J.K.’s medical records. (Compl. ¶¶ 11, 13, 188, 197.) Fairview and Park

Nicollet argue that they cannot be held liable under § 1983 because they did not act under

color of state law. Fairview and Park Nicollet are correct.

“Section 1983 secures most constitutional rights from infringement by

governments, not private parties.” Crumpley-Patterson v. Trinity Lutheran Hosp., 388

F.3d 588, 590 (8th Cir. 2004) (citation omitted). But private parties may be held liable

when they act under color of state law. Id. (citation omitted). A private party acts under

color of state law when they are a “willful participant in joint activity with the state.”


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Magee v. Trustees of Hamline Univ., Minn., 747 F.3d 532, 536 (8th Cir. 2014)

(quotations and citation omitted).

Fairview and Park Nicollet did not willfully participate in any joint activity with

the state. Fairview and Park Nicollet are private, non-profit corporations that provide

medical services to the public. Merely because they are extensively regulated by the state

and receive state funding does not mean that they willfully participate in joint activity

with the state. See Alexander v. Pathfinder, Inc., 189 F.3d 735, 740 (8th Cir. 1999).

Likewise, merely because Fairview and Park Nicollet provided E.J.K. with medical

services under Minn. Stat. § 144.341 does not mean they willfully participated in joint

activity with the state. See Sullivan, 526 U.S. at 52 (“Action taken by private entities

with the mere approval or acquiescence of the State is not state action.”). Because

Fairview and Park Nicollet did not willfully participate in joint activity with the state,

they did not act under color of state law. Calgaro therefore fails to state a claim against

Fairview and Park Nicollet upon which relief can be granted.

3. The School District

Calgaro alleges that the School District deprived her of her constitutionally

protected parental rights by not allowing Calgaro to participate in E.J.K.’s educational

decisions and denying her access to E.J.K.’s educational records. (Compl. ¶¶ 14, 76,

134-38.) The School District argues that Calgaro has failed to plausibly allege that the

execution of a School District policy or custom caused the deprivation of Calgaro’s

parental rights. The School District is correct.


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7

Local governmental bodies like the School District “may not be sued under § 1983

for an injury inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs.

of City of N.Y., 436 U.S. 658, 694 (1978). It is only when “execution of a government’s

policy or custom . . . inflicts the injury that the government as an entity is responsible

under § 1983.” Id.

Calgaro fails to provide any facts that the School District executed a policy or

custom that deprived Calgaro of her parental rights without due process. Instead, Calgaro

merely states in conclusory fashion that “[t]he School District’s policies, customs,

practices, or procedures (or lack of procedures), acting under the color of state law, were

the moving force behind the constitutional violations.” (Compl. ¶ 15.) But the “mere

invocation of the words ‘policies’ and ‘customs’ is insufficient to plead a Monell claim.”

Rickmyer v. Browne, 995 F. Supp. 2d 989, 1030 (D. Minn. 2014) (Nelson, J.). Calgaro

therefore fails to state a claim against the School District upon which relief can be

granted.

4. Principal Johnson

Calgaro alleges that Principal Johnson also deprived her of her constitutionally

protected parental rights by not allowing Calgaro to participate in E.J.K.’s educational

decisions and denying her access to E.J.K.’s educational records. (Compl. ¶¶ 76, 136,

137.) Principal Johnson argues that he is entitled to qualified immunity. Principal

Johnson is correct.

Qualified immunity applies unless the government official’s conduct “violated a

clearly established constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).


APP. 64

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The purpose of qualified immunity is to “give government officials breathing room to

make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-

Kidd, 563 U.S. 731, 743 (2011).

The Eighth Circuit has explicitly left open the question “whether and to what

extent the fundamental liberty interest in the custody, care, and management of one’s

children mandates parental access to school records.” Schmidt v. Des Moines Pub. Sch.,

655 F.3d 811, 819 (8th Cir. 2011). The only other circuit to have ruled on this issue has

held that a noncustodial parent does not have a protected liberty interest in receiving their

children’s school records. Crowley v. McKinney, 400 F.3d 965, 968-71 (7th Cir. 2005).

Because this existing precedent does not place the constitutional question “beyond

debate,” Principal Johnson is entitled to qualified immunity. Ashcroft, 563 U.S. at 741.

5. St. Louis County

Calgaro alleges that St. Louis County deprived her of her constitutionally

protected parental rights without due process by refusing to provide Calgaro with E.J.K.’s

governmental records, providing E.J.K. with general government assistance without

Calgaro’s consent, and providing E.J.K. with medical assistance without Calgaro’s

consent. St. Louis County has moved for judgment on the pleadings regarding the

general government assistance and governmental records claims. St. Louis County

argues that Calgaro has failed to allege that a St. Louis County policy or custom deprived

her of her parental rights without due process. St. Louis County is correct, but not

exactly for the reasons it argues.


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Like the School District, St. Louis County “may not be sued under § 1983 for an

injury inflicted solely by its employees or agents.” Monell, 436 U.S. at 694. It is only

when “execution of a government’s policy or custom . . . inflicts the injury that the

government as an entity is responsible under § 1983.” Id. Furthermore, when a

municipality is acting under compulsion of state or federal law, “it is the policy contained

in that state or federal law, rather than anything devised or adopted by the municipality,

that is responsible for the injury.” Bethesda Lutheran Homes & Servs., Inc. v. Leean,

154 F.3d 716, 718 (7th Cir. 1998). Although the Eighth Circuit has not decided whether

to adopt this common-sense limitation on municipal liability under § 1983, see Slaven v.

Engstrom, 710 F.3d 772, 781 n.4 (8th Cir. 2013), every circuit to have ruled on this issue

has done so. See Vives v. City of New York, 524 F.3d 346, 353 (2d Cir. 2008)

(collecting and analyzing cases).

St. Louis County provided E.J.K. with general government assistance under Minn.

Stat. § 256D.03, which provides that every county “shall provide general assistance to

persons residing within its jurisdiction who meet the need requirements of sections

256D.01 to 256D.21.” Minn. Stat. § 256D.03, subd. 1. St. Louis County argues that

because it is required to provide general government assistance to E.J.K. under this

statute, it is the policy of the state of Minnesota, rather than St. Louis County, that

allegedly deprived Calgaro of her constitutionally protected parental rights without due

process. But the state does not require St. Louis County to provide E.J.K. with general

assistance.


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Minn. Stat. 256D.03 requires St. Louis County to provide E.J.K. with general

government assistance if she meets the need requirements of sections 256D.01 to

256D.21. E.J.K. meets those need requirements if she does not have adequate income

and is “a child under the age of 18 who is not living with a parent, stepparent, or legal

custodian, and only if: the child is legally emancipated or living with an adult with the

consent of an agency acting as a legal custodian . . . .” Minn. Stat. § 256D.05, subd.

1(a)(10). For purposes of this clause:

‘legally emancipated’ means a person under the age of 18 years who: (i) has been married; (ii) is on active duty in the uniformed services of the United States; (iii) has been emancipated by a court of competent jurisdiction; or (iv) is otherwise considered emancipated under Minnesota law, and for whom county social services has not determined that a social services case plan is necessary, for reasons other than the child has failed or refuses to cooperate with the county agency in developing the plan.

Id. As previously discussed, E.J.K. has not been emancipated by a Minnesota court. And

the other three ways E.J.K. could be considered legally emancipated under the statute are

likewise inapplicable. Thus, it is not the policy contained in the state law that is

responsible for the alleged constitutional deprivation, rather it is St. Louis County’s

decision to provide E.J.K. with general government assistance, although not required to

do so, that allegedly deprived Calgaro of her constitutionally protected parental rights

without due process.

This technicality, however, does not save Calgaro’s general assistance claim

against St. Louis County. Calgaro still fails to allege any specific facts that St. Louis

County has a policy or custom that provides non-emancipated minors with general

government assistance in contradiction of state law. For example, Calgaro does not


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allege that St. Louis County has ever provided general government assistance to a non-

emancipated minor before doing so with E.J.K. Nor does Calgaro allege that St. Louis

County has ever provided any individual with government assistance in contradiction

with state law. Instead, Calgaro once again merely alleges in conclusory fashion that “St.

Louis County’s policies, customs, practices, or procedures (or lack of procedures), acting

under the color of state law, were the moving force behind the constitutional violations

asserted in this Complaint.” (Compl. ¶ 5.) Such a conclusory allegation is insufficient to

support Calgaro’s general government assistance claim against St. Louis County. See

Rickmyer, 995 F. Supp. 2d at 1030. Calgaro’s claim concerning St. Louis County’s

refusal to provide her with E.J.K.’s governmental records fails for the same reason.

6. Mirsch

Calgaro fails to state a claim against Mirsch upon which relief can be granted

because Calgaro fails to allege that Mirsch was personally involved in depriving Calgaro

of her parental rights without due process. To establish Mirsch’s personal liability under

§ 1983, Calgaro must allege “specific facts of personal involvement in, or direct

responsibility for, a deprivation of [her] constitutional rights.” Clemmons v. Armontrout,

477 F.3d 962, 967 (8th Cir. 2007) (quotations and citation omitted). Calgaro utterly fails

to do this.

Calgaro mentions Mirsch only twice in her Complaint. (Compl. ¶¶ 8-9.) Calgaro

alleges that Mirsch is the interim director of the St. Louis County Health and Human

Services Department and that she is the final decision- and policy-maker in the

department. (Id. ¶ 8.) Calgaro also alleges that Mirsch is an agent, representative, or


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employee of the department, and as such is acting under color of state law. (Id. ¶ 9.)

These two general allegations do not come close to alleging specific facts of Mirsch’s

personal involvement in, or direct responsibility for, a deprivation of Calgaro’s

constitutional rights. Calgaro therefore fails to state a claim against Mirsch upon which

relief can be granted.

7. E.J.K.

Calgaro stops short of making the absurd argument that E.J.K. deprived Calgaro of

her parental rights without due process while acting under color of state law. Calgaro

merely argues that E.J.K. is a required party who must be joined in the action because

E.J.K. “claims an interest relating to the subject of the action and is so situated that

disposing of the action may as a practical matter impair or impede the person’s ability to

protect the interest.” Fed. R. Civ. P. 19(a)(1)(B)(i). Although E.J.K. likely is a required

party under Rule 19, because Calgaro’s claims against all other Defendants fail, any

claims she might raise against E.J.K. are likewise dismissed.

B. Motions for Summary Judgment

Summary judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). The moving party bears “the initial responsibility of

informing the . . . court of the basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations


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omitted). Where the moving party makes such a showing, the burden shifts to the

nonmoving party, who must demonstrate the existence of specific facts in the record that

create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

(1986). A party opposing a properly supported motion for summary judgment may not

rest upon mere allegations or denials and must do more than simply show that there is

some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986).

1. St. Louis County

St. Louis County moved for summary judgment on Calgaro’s allegation

concerning government assistance of medical payments because the state of Minnesota,

not St. Louis County, provided E.J.K. with that assistance. (See Waldriff Decl. (Docket

No. 39) ¶¶ 6-7.) Calgaro does not dispute this. In fact, Calgaro utterly fails to respond to

St. Louis County’s Motion for Summary Judgment. (See generally Pl.’s Opp’n Memo.

(Docket No. 65).) This allegation is therefore deemed abandoned and summary judgment

is appropriate. See Truong v. Hassan, No. 13cv2947, 2015 WL 2341979, at *7 (D. Minn.

May 14, 2015) (Montgomery, J.) (considering state-law claims abandoned after plaintiff

failed to respond in his opposition memorandum to defendant’s summary judgment

motion).

2. Calgaro

Because her claims are meritless, Calgaro is not entitled to summary judgment.


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CONCLUSION

Calgaro has failed to plausibly allege any § 1983 claims against Defendants.

Accordingly, IT IS HEREBY ORDERED that:

1. Calgaro’s Motion for Summary Judgment (Docket No. 6) is DENIED;

2. Park Nicollet’s Motion to Dismiss (Docket No. 15) is GRANTED;

3. E.J.K.’s Motion to Dismiss (Docket No. 24) is GRANTED;

4. Fairview’s Motion to Dismiss (Docket No. 28) is GRANTED;

5. The School District’s and Principal Johnson’s Motion to Dismiss (Docket

No. 31) is GRANTED;

6. St. Louis County’s and Mirsch’s Motion for Judgment on the Pleadings and

Motion for Summary Judgment (Docket No. 34) are GRANTED; and

7. Calgaro’s Complaint (Docket No. 1) is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: May 23, 2017 s/ Paul A. Magnuson Paul A. Magnuson United States District Court Judge


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