Judge dismisses Clark couple’s suit against Powell school district


Couple claimed school staffers ‘plotted’ to have their child taken away

A judge has tossed out a Clark couple’s lawsuit, which alleged Powell school district officials conspired to take away their child last year.

Authorities temporarily took Dominic and Kimberly Whitham’s 6-year-old son into protective custody in early 2016 and a jury later concluded the Whithams had neglected the boy.

In their recently dismissed lawsuit, the Whithams claimed their legal trouble actually stemmed from “fabricated” reports to law enforcement from school employees who “plotted” against them. An attorney for Park County School District No. 1, Tracy Copenhaver, has disparaged the Whithams’ accusations as “paranoid delusions.”

The couple also alleged in their lawsuit that school staffers in Powell and Clark physically and emotionally harmed their son while failing to properly supervise him in the months before he was taken into protective custody. The Whithams accused the district of negligence, assault, battery, child endangerment and intentional infliction of emotional distress — including alleging that school district staffers improperly restrained and “attacked” the boy.

Copenhaver said the Whithams’ complaint contained a “laundry list of allegations ... which are grossly exaggerated, inaccurate and, in the opinion of the defendants, untrue.”

The Powell school board denied the Whithams’ claims of mistreatment and requests for compensation in March; the Whithams filed their 30-count complaint in Park County’s district court in early April.

Late last month, District Court Judge Steven Cranfill dismissed the Whithams’ case, ruling that Wyoming’s laws shield the school district from being sued over the allegations.

“We’re pleased and believe that the decision of the court was appropriate,” Copenhaver said Wednesday.

The Whithams plan to appeal the decision.

In a series of videos posted to YouTube — containing snippets of video footage from the incidents in question, interspersed with commentary on the case — Dominic Whitham has called the entire judicial system “CORRUPT,” claiming a conspiracy that goes beyond school officials to the County Attorney’s Office and Powell police. He says they’re all covering up an “insidious crime,” and Whitham has also called local authorities’ decision to take away their child an “abduction” and “kidnapping.”

According to the Whithams' suit, their son was taken into Wyoming Department of Family Services custody in February 2016 because school staffers and a Powell police officer reported — falsely, the Whithams say — that the child had made suicidal statements. The Park County Attorney’s Office then formally accused the couple of child neglect and abuse in a petition filed in juvenile court, also overseen by Judge Cranfill. Such cases do not carry criminal penalties, instead being civil matters meant to determine whether a child can stay with their parents and under what conditions.

Juvenile court records are sealed from public view, but according to videos posted to YouTube by Dominic Whitham, prosecutors alleged in part that the couple had “failed to meet [the boy’s] mental health needs.”

Court filings and Dominic Whitham’s YouTube videos indicate that disagreement between government officials and the Whithams about the severity of the boy’s behavior, and whether he needed counseling and/or medication, were some of the key issues in the neglect case.

In a closed-door trial in Cody last year, a jury rejected the abuse allegations brought by the county attorney’s office as “untrue,” but concluded the Whithams “had indeed neglected their child,” the Wyoming Supreme Court wrote in a June opinion.

The Whithams appealed the jury’s findings, but the Supreme Court — which identified the couple by only their initials — rejected their appeal and upheld the jury’s decision on June 1. Wyoming Supreme Court Justice Michael Davis wrote that the arguments made by the Whithams’ attorney, William Struemke of Serviam Legal Services, were “unintelligible at best.”

Struemke is a member of the Park County School District No. 6 Board of Trustees in Cody, which is also represented by Copenhaver. For that reason, Struemke argued that Copenhaver had a conflict of interest and should be barred from representing the Powell district in the civil suit; Copenhaver called the argument “ridiculous.”

Judge Cranfill ultimately ruled there was not a conflict and allowed Copenhaver to stay on the case.

The Whithams’ suit — which Struemke has called “extremely important” — sought upwards of $835,000 in damages from Park County School District No. 1. Of that, roughly $773,000 was to cover 20 years of weekly counseling and/or psychiatric treatment for the Clark couple and their son, according to documents they submitted to the court. Additionally, the Whithams wanted the school district to reimburse them for the thousands of dollars they spent defending themselves from the neglect allegations brought by the Park County Attorney’s Office — including for their travel to court hearings and to order court transcripts.

Before filing the suit, the Whithams filed a governmental claim that sought $2.5 million. The Park County School District No. 1 Board of Trustees — which oversees the schools in Powell and Clark — denied that claim at its March 28 meeting.

Differing accounts of four incidents

The Whithams’ suit generally focuses on how school staffers treated and restrained their son in three incidents at the Clark Elementary School and a fourth, culminating incident at the district’s Support Services Building in Powell, where some children with special needs are educated.

In one of his YouTube videos, Dominic Whitham says the school district never accepted his child’s ADHD diagnosis and instead considered him to be a “behavioral problem student.”

“Rather than trying to support a child with a disability, they instead placed him into a [behavioral disorder] room,” Whitham wrote in one video.

In his motion to dismiss the lawsuit, Copenhaver wrote that the boy “is what has been referred to as ‘a runner’ and has, on a few occasions, been required to be restrained to keep from hurting himself and/or others and/or to calm him down so that he will stay in the learning environment and learn and not leave the learning environment where he is not able to be instructed and disrupts other educational settings and/or leaves the building where he can be in an unsafe environment without supervision.”

In court filings, the Whithams and the school district described the four incidents in question in dramatically different ways.

For example, the Whithams’ complaints begin with an October 2015 incident at the Clark Elementary School, where they say teacher Denise Feller “tackled” the boy when he took off running; she then is alleged to have restrained him while he “flailed his arms and legs to escape.”

In contrast, Copenhaver wrote on the district’s behalf that Feller “was holding [the boy] to comfort him and to try to calm him down and was singing to him at the time.”

The following month, in November 2015, the school district sent Kerri Boggio, a special education teacher, to observe the boy’s behavior at the Clark school.

The Whithams said their boy threatened Boggio with a stick and she threatened to hit him back; they say Boggio later “began rummaging through the items laying on the front seat” of Dominic Whitham’s SUV without permission. That amounted to trespassing, the suit alleges.

The district’s response, however, says the “stick” was actually a piece of trim the boy had torn off the Clark school building and that Boggio never threatened him. As for the alleged trespassing, the district says Boggio had been trying to help Dominic Whitham get the boy to stay in his seat belt “when she noticed a firearm sitting on the front of the vehicle while in a gun-free school zone and where [the boy] could access it.”

Three days after that, another school staffer, special education paraeducator Jerry Haire, was sent to observe the boy’s behavior.

As Haire videotaped him, the Whithams’ son reportedly climbed tables in the Clark school’s gym and got into the kitchen. He then walked on a stove, countertops and a center island, the Whithams’ complaint says, getting access to kitchen utensils, sharp knives and coffee mugs — throwing some of those objects across the kitchen.

“At no time did anyone stop [the boy] or tell him ‘no’ to doing any of the aforementioned actions or try to coax [the boy] out of the kitchen,” the complaint says.

Copenhaver responded that the boy was never in danger, saying he was being allowed “to engage in his typical behaviors for the purposes of observing what his behaviors were so the team could best plan how to provide for his education.”

“This continued until such time as he grabbed a dangerous knife, at which time his behavior was stopped,” Copenhaver wrote.

The Whithams further allege that, to stop the boy, Haire “attacked” him — pushing a wheeled, metal serving tray straight at him “in order to try to hurt or disable him.”

“Haire further attacked [the boy] by kicking a large metal bowl directly at [him] and then dumping two large rolls of plastic, which were on top of the center island, directly on [the boy’s] head,” the Whithams’ complaint alleges.

The district said that’s not true.

“What actually happened is that defendant Haire was trying to obstruct [the child’s] exit route in order that he could corral him and take away a knife, and did not hit [the child] with anything or attempt to injure him,” Copenhaver wrote.

Incident resulted in ‘lockdown’

While the Whithams apparently wanted their son to be transferred to Parkside Elementary School, he was moved to a classroom at the Support Services Building.

On Feb. 26, 2016, the boy snuck out of a room where he was supposed to be sleeping and hid in another room. When staffers found him — and when he refused to cooperate — the boy was picked up and carried to a chair by Haire, the complaint alleges.

The Whithams allege that Haire then held the boy on his lap for approximately 20 minutes. During that time, the boy was “verbally and physically taunted and abused” by Boggio and Haire, the complaint alleges.

Dominic Whitham uploaded portions of the school’s surveillance footage to YouTube showing parts of that interaction. In the video clips, the boy can be seen squirming, yelling and complaining of pain as he tries to get out of Haire’s grip on his arms. In one portion, the boy also threatens to hit and kick the educators, while they talk about how his attacks would not hurt them.

“If I could just get out of here, I’m going to punch you,” the boy says at one point, struggling to get free.

“Not like I haven’t been punched before,” Boggio responds in part. “I’m sure your punch isn’t going to hurt me.”

The boy makes additional comments that are inaudible on the recording.

The Whithams claim that Boggio and Haire later “violently” applied an illegal “prone restraint.” However, that allegation appears to be contradicted by the footage uploaded to YouTube.

A prone restraint generally refers to holding someone on the ground, face-down. In the videos, Boggio and Haire restrain the boy on the floor, but he is clearly on his back — with his face up.

Under state law, a prone restraint can also include a hold that impairs a student’s ability to breath or communicate distress, obscures staffers’ view of the student’s face or puts pressure on their head, neck or torso. None of those things are seen in the clips: Haire lays over the boy’s legs in a reclining position, while Boggio holds his arms while his head rests in her lap.

Powell Police Officer Jason Pellegrino, the school resource officer, arrived while the boy was being restrained on the floor. Pellegrino was summoned by Boggio “to come observe and assist, if necessary, with restraining [the boy] and calming him down and attempting to address his complaints about his behavior being caused by his parents’ violent and assaultive behavior which he described as taking place in his presence,” Copenhaver wrote in the district’s response to the suit.

Copenhaver says the boy made suicidal statements to school employees, Pellegrino and, some time later, to a counselor.

A Powell police record obtained by the Tribune through a public records request says that Pellegrino radioed dispatch from the Support Services Building and reported that “a child is being abused, his father is the suspect and has a history of being armed.” The Support Services Building and some other school facilities were put on “lockdown” as a precaution.

The boy was taken into protective custody.

The Whithams, however, say the boy “was never suicidal or a danger to himself or others” and allege the information was “fabricated.” Struemke told local reporters in June that the allegations of abuse were “unfounded, unsubstantiated and not proven in a court of law” and that the remarks in the district’s response could be considered “slanderous.”

“I know them to be good people,” he said of the Whithams.

In their suit, Struemke and the Whithams accused Boggio and Haire of “plotting” to have the boy taken into state custody, contending the sequence of events was pre-planned. That’s largely based on a conversation captured on the Support Services Building’s video surveillance system. Dominic Whitham posted that footage to YouTube, but the audio recorded by the camera is of poor quality and a Tribune reporter was unable to make out what was said.

According to the Whithams, Haire can be heard referencing an email about “the thing we were planning,” then Boggio mentions the Whithams’ child’s first name and says, “We can now get them to do it instead of flip-flopping.”

Contempt of court

Judge Cranfill returned the boy to the Whithams on March 4, 2016, about one week after he was taken into protective custody, public court records say. The judge did require the Whithams to meet several conditions, including having the boy attend individual counseling and undergo both a psychiatric evaluation and a developmental screening “to assess and identify current delays,” court records say. The Whithams were also ordered to make all of that information available to a Department of Family Services-led team.

However, by mid-May 2016 — shortly before the closed-door trial was to start — none of those things had been done and the county attorney’s office filed new, public cases asking Judge Cranfill to find the Whithams in contempt of court. Ultimately, prosecutors dropped those cases.

In late June, however, the county attorney’s office filed a new criminal contempt case against Dominic Whitham over the YouTube videos; prosecutors allege Whitham “knowingly released confidential information” about the juvenile case on the internet — also noting his videos include footage of another young child at the Support Services Building.

Whitham responded with another video saying the contempt case is part of the “cover up.” Struemke has asked for the case to be dismissed, arguing it was improperly filed and that the county attorney’s office has misinterpreted the law.

A hearing has not yet been scheduled.

When Cranfill dismissed the Whithams’ civil suit against the school district he did so on the grounds that, regardless of whether the allegations are true, Wyoming law shields the school district from the suit.

The judge pointed to Supreme Court precedent that says, “there is perhaps no common law doctrine more time honored than the doctrine of sovereign immunity” — that is, that the government is generally immune from being prosecuted in court. The decision was finalized on Tuesday.

Struemke says he plans to appeal, arguing that the Wyoming Legislature did not intend to protect school districts from allegations like those made by the Whithams.

Dominic Whitham says the boy has been homeschooled since he and his wife regained custody in March 2016.