The Colorado Springs Gazette final

Judge says man cannot sue Larimer County

BY MICHAEL KARLIK michael.karlik@coloradopolitics.com BAR IS-OZER VIA GETTY IMAGES

Even though Larimer County’s description of the incident showed Mark Howshar played no role in the alleged May 2021 abuse of a child, a federal judge last month decided Howshar could not sue the county or one of its caseworkers for placing him into the state’s child abuse database.

U.S. Magistrate Judge Michael Hegarty dismissed Howshar’s lawsuit on Nov. 17, finding he had no constitutional right to avoid being included in the database absent more evidence of child abuse.

“The court has identified no cases finding a clearly established right not to have one’s name entered on a child abuse information system under similar facts,” Hegarty wrote.

Howshar received a letter in July 2021 from Michele Lorenzen, a caseworker with the Larimer County Human Services department, informing Howshar the department had completed an assessment of alleged child abuse or neglect occurring on May 26, 2021.

“The allegation has been confirmed and you have been identified as the person responsible for the incident of child abuse or neglect,” the letter read. “Your name will be maintained in the Comprehensive Child Welfare Information System (Trails).”

However, a petition the department filed in Larimer County District Court that month contained no indication that Howshar was actually involved in the alleged physical abuse of a child referred to as E.O.

The county described that on May 26, Howshar’s wife, Sandra Howshar, allegedly hit E.O. “several times in the face.” Another child in the home alleged it was “not the first time” the physical contact occurred. In an interview, E.O. reportedly said she “does not feel safe” with Sandra.

The department added that according to E.O.: “Mark is nice to her and she does not have any worries about Mark.” Howshar also “tries to get Sandra to stop hitting her.” Although the county’s petition alleged “bullying” behavior from Howshar in the past, the department told the court it only felt Sandra’s conduct was “concerning,” and asked for a no-contact order solely between her and the children.

Sandra denied the allegations in the petition and requested a jury trial on the question of whether E.O. was dependent and neglected — a finding that could eventually lead to the termination of a parent’s legal rights over their child. A jury answered in the negative, deciding Sandra did not subject E.O. to mistreatment or abuse, nor was E.O. in an environment “injurious to her welfare.”

After then-district Court Judge Julie Kunce Field overrode the jury’s verdict and declared E.O. dependent and neglected, the state’s Court of Appeals stepped in this year to reverse her, finding the evidence could plausibly support the jury’s original decision.

Howshar was not a party to the dependency and neglect case, and he instead attempted to appeal his inclusion in the Trails database. But reportedly, the Colorado Department of Human Services mistakenly deemed his appeal “abandoned” earlier this year. In April, Howshar filed suit in Denver District Court asking for a review of the decision, and initiated his lawsuit in Colorado’s federal court two months later.

“The Larimer County Department’s finding that plaintiff should be identified on Trails as a person responsible for an incident of child abuse or neglect was improper, premature, unsubstantiated, and injurious to plaintiff’s constitutional rights,” his attorneys wrote.

Howshar claimed the actions of Larimer County and Lorenzen deprived him of his liberty and privacy in violation of the 14th Amendment. Specifically, he noted that information from the Trails database is disclosed under certain circumstances to employers. He asked for a court order to remove his information from Trails, plus monetary damages.

Lawyers for the defendants moved to dismiss the case, arguing Larimer County’s human services department is an arm of the state and, therefore, is protected by the legal immunity afforded to states. As for Lorenzen, the attorneys claimed she was entitled to qualified immunity, which generally shields government employees from civil liability unless they violate a person’s clearly established rights.

There is no 14th Amendment right, they explained, to avoid placement on the child abuse database without sufficient evidence.

“Howshar bore the burden of providing authority wherein a Colorado county-level human services employee was found to have violated the Fourteenth Amendment by processing a complaint and placing a citizen’s name on the Trails system,” wrote attorney Heather Kuhlman. “Plaintiff has wholly failed to do that.”

Hegarty agreed with the defendants, noting that mere “mishandling” of a Trails listing still entitled Lorenzen to qualified immunity.

“Plaintiff broadly alleges a violation of his Fourteenth Amendment rights but does not cite any specific federal laws that Ms. Lorenzen violated by naming him in Trails with the information she had available,” Hegarty wrote. Further, Howshar had not pointed to any law “that would define how Ms. Lorenzen ought to proceed when naming an individual in Trails.”

Lawyers for the defendants, Mark Howshar and Sandra Howshar did not immediately respond to a request for comment. The state human services department similarly did not respond to an email seeking comment about Howshar’s Trails appeal.

LOCAL & STATE

en-us

2022-12-04T08:00:00.0000000Z

2022-12-04T08:00:00.0000000Z

https://daily.gazette.com/article/281706913709044

The Gazette, Colorado Springs