Opinion
Civil No. 00-129-M
April 26, 2001
ORDER
This suit arises from an on-going state child protection proceeding. Ashley W. (a/k/a Shirley) and Christopher W. (the "children") are minor children in the custody of the New Hampshire Division of Children, Youth, and Families (DCYF). Peter L., Ashley's father, charges multiple defendants with depriving and/or conspiring to deprive him and the children of fundamental constitutional rights, for which he seeks monetary damages under 42 U.S.C. § 1983 and 1985, and attorney's fees under 42 U.S.C. § 1988. He also alleges state claims on behalf of himself and the children.
In addition to monetary damages, Peter L. initially sought custody of the children through a petition for writs of habeas corpus. Because there is no federal habeas relief available to challenge state child custody orders, see Lehman v. Lycoming County Children's Services, 458 U.S. 502, 515-16 (1982), the court dismissed the petition by order dated January 12, 2001.
The children were placed in DCYF custody following a dispositional hearing and a finding of neglect, by their mother, Lesley W. Acting pursuant to state court orders, defendants have placed and/or cared for the children since that time. Peter L. became involved in the child protection proceedings in 1994. As Ashley's biological father, and alleged de facto step-father to Christopher, Peter L. believes he should have been awarded custody of the children when his paternity of Ashley was established. Allegations in the complaint, and state court orders in the record, reveal that he has repeatedly sought custody of the children only to have the state court reaffirm DCYF's custody. This court determined earlier that to find defendants liable for failing to place the children in Peter L.'s custody would necessarily require a finding that the state court erred in reaffirming DCYF's custody. Accordingly, in response to motions to dismiss submitted by several defendants (document nos. 24 29), this court ordered Peter L. to show cause why this case should not be dismissed under the Rooker-Feldman Doctrine, which precludes federal courts from reviewing state court orders. See Order of January 12, 2001 ("January 12 order") (document no. 49).
Discussion
Peter L.'s claims can be divided into two groups: (1) claims related to custody and (2) claims related to alleged abuse of the children while in DCYF custody.
I. Claims Related to Custody
Peter L. argues that the Rooker-Feldman Doctrine does not apply to this case because there is no valid state court judgment related to his rights. He says that because he was not given notice of the state child protection proceedings when they were commenced, the state court did not have jurisdiction to issue any orders affecting his rights. That argument is supported by neither the facts nor the applicable law.
Peter L. mistakenly argues that the Manchester District Court's power to make child custody determinations in this case is derived from New Hampshire's version of the Uniform Child Custody Jurisdiction Act, Rev. Stat. Ann. (RSA) ch. 458-A:3 (1994). While agreeing that RSA 169-C:6-a would empower the Manchester District Court to issue custody orders in an emergency situation (described by Peter L. as "caused by the intoxication of Lesley W. that resulted in her confinement to the state mental hospital"), Peter L. argues that "the lack of due diligence on the part of [DCYF] to locate and join a necessary party [him] stripped the court of its jurisdiction to make custody determinations under RSA 458-A:3." Plaintiff's Memorandum in Response to Court Order at 5-6. RSA 458-A:3, however, is inapplicable to child protection proceedings. See RSA 458-A:2, III (amended 1999) (defining "custody proceeding" as specifically excluding child protective proceedings and proceedings involving custody of neglected or dependent children).
RSA 169-C:6-a provides for "Emergency Interim Relief" when DCYF or a law enforcement officer requests an ex parte order to remove a child. Whether this provision was actually invoked in this case is not revealed by this record, but it is not relevant to resolution of the issues before the court.
Instead, the Manchester District Court's authority in child protection proceedings is derived from RSA 169-C, the New Hampshire Child Protection Act. See, e.g., RSA 169-C:4 (1994) (vesting "exclusive original jurisdiction over all proceedings alleging the abuse or neglect of a child" in the state district courts); RSA 169-C:19 (Supp. 2000) (setting out orders court may make following dispositional hearing). Within that authority, "[i]f the court finds that a child is abused or neglected, the court may order the following disposition: . . . Legal custody may be transferred to a child placing agency . . . ." RSA 169-C:19, III(a). Accordingly, when Lesley W. was adjudicated neglectful, the Manchester District Court had the authority to award DCYF custody of the children.
Peter L.'s argument that the Child Protection Act and due process require that non-custodial parents receive notice of proceedings involving their children has some merit. See, e.g., RSA 169-C:7, IV(d), :8, I; Rubin v. Smith, 817 F. Supp. 987, 994 (1st Cir. 1993). However, in this case, the Hillsborough Superior Court has previously ruled that Peter L. waived the notice issue. See In re Shirley W., No. 96-J-0012 (Hillsborough Super. Ct., Dec. 5, 1996) (order denying appeal) ("Hillsborough Order"). In 1994, Peter L. filed an appearance in the child protection proceedings. The record indicates that he has been participating in the on-going proceedings since that time. In December of 1996, Peter L. attempted to appeal the Manchester District Court's September 17, 1996, order that reunification between Peter L. and the children was no longer a goal. The Hillsborough Superior Court denied the appeal as untimely. See Hillsborough Order at 3; see also RSA 169-C:28 (providing thirty days to appeal district court final orders and modifications to the superior court). In his ruling, Judge Groff noted that Peter L. was notified of the proceedings in 1994, and he appeared in the matter without contesting the adjudication or dispositional order, or taking any action to set aside the orders for lack of notice. Judge Groff then made the following finding:
The fact that the appellant was not notified of the original proceedings is of little consequence. Assuming arguendo that he may have had some right to set aside the earlier orders because he did not receive notice, he failed to take such action. In essence, the appellant's present position is no different than if he had been a party to the proceedings initially.
Hillsborough Order at 2. Accordingly, any right that Peter L. may have had as a result of not being notified of the original neglect proceeding has been ruled waived by the New Hampshire state courts.
The rights of a parent to the care and custody of his or her child is a protected liberty interest under the Constitution, but that interest has never been held absolute. See Watterson v. Page, 987 F.2d 1, 8 (1993). It co-exists with the state's right — sometimes referred to as duty — to protect the welfare of children. See id.; see also Stanley v. Illinois, 405 U.S. 645, 649 (1972) (recognizing the state's right to protect children as a "duty"). In that vein, judicial proceedings related to the custody of Ashley and Christopher W. have been on-going in the New Hampshire state courts for almost eight years. The fact that Peter L. has framed his present claims in terms of monetary damages against those who have participated in those proceedings does not change the reality that any decision by this court imposing liability on defendants would be inextricably intertwined with the review of Judge Groff's and the Manchester District Court's orders. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). Whether those judicial decisions were right or wrong, or even constitutional, is not for this court to decide. See Brown v. Ives, 129 F.3d 209, 212 (1997) (citing Rooker v. Fidelity Trust Co., supra). Accordingly, for the reasons stated herein, and in the court's January 12 order, all claims related to state court orders determining the custody of Ashley and Christopher W. are dismissed. Peter L. is free to pursue appellate remedies in the state courts, and eventually, seek review in the United States Supreme Court, if appropriate.
Under New Hampshire law, Peter L. may be able to petition for a writ of certiorari and/or a writ of habeas corpus in the state supreme court. See In re Bill F., 761 A.2d 470, 473 (N.H. 2000) (writ of certiorari); Petition of Kerry D., 737 A.2d 662, 665 (N.H. 1999) (writ of habeas corpus). In addition, the New Hampshire Supreme Court's relatively recent ruling in In re Bill F., granting non-custodial parents, who have not been found neglectful or abusive, a right to a full hearing may or may not provide grounds for an appeal in the state courts.
II. Claims Related to Alleged Abuse of the Children while in DCYF Custody
Paragraphs 19, 20, and 41 of the complaint assert facts and claims related to alleged abuse of the children while in DCYF custody. The claims are brought specifically against Nancy DuBois and Russann Niles, "as agents of DCYF," and against Nancy Rollins as "head of [DCYF who] is responsible for [DCYF] policies that permit the withholding of crucial information from parents about the welfare of their children." These claims were not addressed in the January 12 order, and Peter L. correctly points out in his response to the order that there is no related state court judgment. These claims are distinctly separate from the claims related to custody, and, except as in response to a prior motion to unseal, the individual defendants employed by DCYF have not filed any motions in this matter. Because Peter L. has alleged facts that may support a federal cause of action in this respect, the court will not dismiss these claims sua sponte.
Conclusion
Because Peter L.'s claims related to custody, on behalf of himself and the children, require review of state court orders, those claims are dismissed. However, the claims related to alleged abuse of the children while in DCYF custody remain. Accordingly, claims against defendants Lynn Stanley, Gailann Newton, and Dan Newton are dismissed; the case shall proceed against Nancy Rollins, Nancy DuBois, Russann Niles, and DCYF on the claims related to alleged abuse of the children while in DCYF custody.
SO ORDERED.