O'BRYANT et al v. THE NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANANCY et al
Filing
44
MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 9/5/2018. (tf, n.m.)
IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF NEW JERSEY
KINDRA O’BRYANT, BRIAN
FLANDERS and ARTIE PEOPLES,
HONORABLE JEROME B. SIMANDLE
Plaintiffs,
Civil Action
No. 17-7752 (JBS-AMD)
v.
THE NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANANCY, et al.,
MEMORANDUM
OPINION
Defendants.
SIMANDLE, District Judge:
Plaintiffs pro se Kindra O’Bryant (“O’Bryant”), Brian
Flanders (“Flanders”), and Artie Peoples (“Peoples” and,
collectively, “Plaintiffs”) filed this 42 U.S.C. § 1983 suit
alleging that the New Jersey Division of Child Protection and
Permanency (“NJDCPP”), and others, violated their constitutional
rights by removing Ms. O’Bryant’s three children, Ke.O., Ky.O.,
and K.F., from their care.1 [See generally Docket Item 1
(“Compl”).] Numerous defendants are named in the suit for their
role in the removal and ensuing custody-related hearings,
including NJDCPP, various NJDCPP supervisors, caseworkers, and
employees, three officers from the Camden County Police
1
Mr. Flanders is the father of one of Ms. O’Bryant’s three
children, K.F., and Mr. Peoples is Ms. O’Bryant’s father and the
maternal grandfather of all three children. (Compl. at ¶¶ 19,
21.)
Department (“CCPD”), and unnamed “Does 1-20” (collectively,
“Defendants”). (Compl. at ¶¶ 4-14.)
Pending before the Court are three motions filed by
Defendants: (1) the motion to dismiss filed by Defendants
Sheriff Gilbert “Whip” Wilson, Sheriff Deputy T. Nichols, and
Sheriff Deputy Gurkin (collectively, “the CCPD Defendants”)
pursuant to Fed. R. Civ. P. 12(b)(6) [Docket Item 19]; (2) the
motion to dismiss filed by Defendants NJDCPP, Lisa von Pier,
Allison Blake, Lisa Capone, Conchita Varga, Bryant Rolls, and
Jonathon Garrett (collectively, with Defendant Alicia Ash, “the
NJDCPP Defendants”) pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6); and (3) the motion to dismiss filed by Defendant
Alicia Ash pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
[Docket Item 25.] Plaintiffs filed a response brief and exhibits
in opposition to the motions to dismiss [Docket Items 26, 27],
and Defendants filed reply briefs. [Docket Items 30, 31.]
Plaintiffs subsequently filed a sur-reply [Docket Item 35], with
leave of the Court. [Docket Item 39.] The Court invited a
written update of the status of custody proceedings in the
Superior Court [Docket Item 40], to which Deputy Attorney
General Haroldson responded [Docket Item 41]; Mr. Peoples
[Docket Item 42] and Ms. O’Bryant [Docket Item 43] replied, with
2
Ms. O’Bryant taking exception to the fairness and lawfulness of
the ongoing state court proceedings. The Court finds as follows:2
1.
Factual and Procedural Background. According to the
Complaint, on June 6, 2017, NJDCCP received a telephone call
from the Early Childhood Development Center School indicating
that, when Mr. Flanders dropped Ky.O and Ke.O at school that
morning, he appeared to be “upset and agitated.” (Compl. at ¶¶
25, 36.) Upon further investigation, NJDCPP discovered that Mr.
Flanders had an “endangering the welfare of child charge,
weapons charges, aggravated assault on a police officer charge,
[and] warrants for his arrest.” (Id. at ¶ 132.)
2.
Also on June 6, 2017, Ms. O’Bryant was hospitalized in
connection with an incident of self-mutilation and/or attempted
suicide due to severe depression. (Id. at ¶¶ 26, 43-46, 51.) Ms.
O’Bryant was pregnant with her soon-to-be daughter, K.F., at the
2
The facts alleged are drawn from the Complaint, public court
documents, and undisputedly authentic documents upon which
Plaintiffs explicitly rely upon in the Complaint. See In re
Rockefeller Ctr. Props., Inc., Sec. Litig., 184 F.3d 280, 287
(3d Cir. 1999). Because the Complaint is, in large part,
predicated upon allegations made against Mr. Flanders, the
Verified Complaint in the Child Abuse – Neglect action against
Ms. O’Bryant and Mr. Flanders, which Plaintiffs filed as an
exhibit in support of their opposition brief [see Docket Item
27], will be considered in connection with the pending motions
to dismiss. Pension Ben. Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (“[A] court may
consider an undisputedly authentic document [attached] as an
exhibit to a motion to dismiss if the plaintiff’s claims are
based on the document.”).
3
time. (Id. at ¶¶ 26, 75.) Sometime before Ms. O’Bryant was
discharged from the hospital on June 7, 2017, she signed an
Intake Family Agreement, wherein Ms. O’Bryant agreed that Mr.
Flanders would only be permitted around the children after
completing a two-week domestic violence program. (Id. at ¶¶ 12,
54-61, 87-89.) Thereafter, Defendant Alicia Ash, an employee of
NJDCPP, and another caseworker toured Ms. O’Bryant’s home and
“noticed that the house had an insect pest problem (roaches, bed
bugs)[,] the stove was broke and the house was in need of
repairs.” (Id. at ¶ 67.)
3.
On August 15, 2017, Ms. O’Bryant gave birth to K.F. at
Cooper Hospital. (Id. at ¶ 75, 122.) The following day, NJDCPP
caseworkers arrived at the hospital to discuss with Ms. O’Bryant
the Intake Family Agreement she had previously signed. (Id. at
¶¶ 76-78, 81-120.) While at the hospital, one of the NJDCPP
caseworkers, Defendant Conchita Varga, asked to interview Ke.O.
and Ky.O. (Id. at ¶ 124.) Mr. Peoples, the children’s paternal
grandfather, refused to permit Vargas to interview the children
and attempted to leave the hospital with them. (Id. at ¶ 125.)
In response, the Complaint alleges that Defendant Varga summoned
Defendant T. Nichols, a Deputy Sheriff with CCPD, who took the
children from Mr. Peoples and brought them across the street
from the hospital to a NJDCPP office, where it was decided that
the children should remain in NJDCPP custody. (Id. at ¶¶ 126,
4
138, 141-42, 147.) After K.F. was cleared for release by the
hospital, she too was removed from Plaintiffs’ custody by
NJDCPP. (Id. at ¶ 159.) Mr. Flanders was subsequently arrested
by Defendant T. Nichols at the hospital. (Id. at ¶¶ 144-45.)
4.
On August 18, 2017, NJDCPP filed a Verified Complaint
for a Child Abuse – Neglect civil action against Ms. O’Bryant
and Mr. Flanders in the Superior Court of New Jersey Chancery
Division, Family Part, Camden County, Docket No. FN-04NJS:17144081. [See Docket Item 27 at 8-17.] Because Ms. O’Bryant
could not attend a hearing that was to be held that day, the
proceedings in the Superior Court were postponed until October
5, 2017. (Compl. at ¶¶ 171, 177.) On October 2, 2017, three days
before that hearing was to be held, Plaintiffs filed this
Complaint in federal court seeking $10,000,000 in compensatory
damages and $50,000,000 in punitive damages. [Docket Item 1.]
Thereafter, Defendants filed the motions to dismiss now pending
before the Court. [Docket Items 19, 20, 25.]
5.
The Court subsequently asked for an update as to the
status of the state court proceedings. [Docket Item 40.]
According to the NJDCPP Defendants, the state court proceedings
are still ongoing, with a permanency hearing having been held
before the New Jersey Superior Court on August 10, 2018, and
another hearing scheduled for November 2, 2018. [Docket Item
41.] Through these proceedings, NJDDPP “has been working
5
actively with the Plaintiffs to achieve reunification . . .
[with] hopes that reunification will occur in approximately six
months,” and “as part of this process, Plaintiffs have been
visiting the children almost daily.” [Id.] Plaintiffs
acknowledged receipt of the NJDCPP Defendants’ letter to the
Court and acknowledge that the Superior Court case remains
ongoing.3 [Docket Items 42 & 43.] Accordingly, the Court assumes,
for purposes of deciding the pending motions, that the state
court proceedings are ongoing, with the next in a series of
hearings set for November 2, 2018, as described above.
6.
Standard of Review. Under Federal Rule of Civil
Procedure 12(b)(1), a party may move to dismiss a complaint for
lack of subject matter jurisdiction. Because federal courts are
courts of limited jurisdiction, the party seeking to invoke the
court’s jurisdiction bears the burden of proving the existence
of subject matter jurisdiction. See Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 377 (1994). Under Fed. R. Civ.
P. 12(b)(1), the court’s jurisdiction may be challenged either
facially (based on the legal sufficiency of the claim) or
3
Notably, Ms. O’Bryant’s letter of September 3, 2018 [Docket
Item 43] alleges that the state court and Defendants are
violating her constitutional rights to due process because she
claims there has not been a show-cause hearing, and that the
Superior Court has not made sufficient findings pertaining to
Social Security benefits under Court Ordered placements
described in the NJDCPP’s manual, an excerpt of which is
attached to her letter. [Id. at 4-6.]
6
factually (based on the sufficiency of a jurisdictional fact).
Gould Elecs. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000); see also
A.D. v. Haddon Heights Bd. of Educ., 90 F. Supp. 3d 326, 334
(D.N.J. 2015) (explaining the same distinction). On a facial
attack, the Court considers only the allegations of the
Complaint and documents referenced therein, construing them in
the light most favorable to Plaintiff. Pearson v. Chugach Gvt.
Svcs. Inc., 669 F. Supp. 2d 467, 469–70 (D. Del. 2009). On a
factual attack, “no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims. Moreover, the
plaintiff will have the burden of proof that jurisdiction does
in fact exist.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549
F.2d 884, 891 (3d Cir. 1977).
7.
Under Federal Rule of Civil Procedure 12(b)(6), the
court must “accept all factual allegations as true, construe the
Complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the
Complaint, the plaintiff may be entitled to relief.” Fleisher v.
Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (internal
citations omitted). In applying this standard to pro se
pleadings and other submissions, as here, the Court must
liberally construe the well-pleaded allegations, and draw all
7
reasonable inferences in favor of the pro se litigant. Higgs v.
Atty. Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011);
Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184
(3d Cir. 2009). Despite this liberality, however, a pro se
complaint must still “contain sufficient factual matter,
accepted as true,” to “state a [plausible] claim to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Marley v.
Donahue, 133 F. Supp. 3d 706, 714 (D.N.J. 2015) (explaining the
same concept).
8.
Discussion. The Court finds that the Complaint fails
to state a claim over which a federal court would have subject
matter jurisdiction. Although Plaintiffs have clothed their
complaint in the garb of a civil rights action, the Complaint
boils down to a dispute over the custody of the three children
and the interactions of these Plaintiffs and Defendants in that
custody process. Plaintiffs note several times that they were
afforded a fact-finding hearing by the Camden Superior Court,
which was postponed to October 5, 2017 (Compl. at ¶¶ 171-73),
and which was resumed on various dates since then. Plaintiffs’
primary grievance against the various Defendants is that their
removal decisions, and those of the Superior Court, were simply
wrong. For example, Ms. Bryant repeatedly complains that the
evidence of child abuse was improperly derived from a closed
8
case involving Mr. Flanders’ five-year-old son and that
Defendants removed her children “where there is no reasonable
and articulable evidence giving rise to a reasonable suspicion
that a child has been abused or is in imminent danger of abuse.”
(Id. at ¶ 23, see also id. at ¶¶ 30, 76, 91.) Ms. O’Bryant more
recently claims that the Superior Court has not followed the
correct procedural steps for a show-cause hearing and for
determining placement of children. [Docket Item 43.]
9.
Lack of Jurisdiction over Domestic Relations
Determinations. This Court does not have jurisdiction over
determinations of parental rights and child custody, because
these are matters within the longstanding exception to federal
jurisdiction in matters involving domestic relations of husband
and wife, and parent and child. The New Jersey Legislature
“adopted comprehensive legislation for the protection and
welfare of the children of this State,” and child abuse and
neglect cases are controlled by Title 9 of the New Jersey
Statutes. See New Jersey Div. of Youth and Family Serv. v. M.C.
III, 990 A.2d 1097, 1107 (N.J. 2010). New Jersey law makes clear
that “the Superior Court, Chancery Division, Family Part has
exclusive original jurisdiction over noncriminal proceedings
under this act alleging the abuse or neglect of a child.”
N.J.S.A. § 9:6-8.24 (emphasis added). New Jersey law also
mandates “[a]ll noncriminal cases involving child abuse” to be
9
“transferred to [New Jersey family court] from other courts . .
. .” N.J.S.A. § 9:6-9.22; see also Cesare v. Cesare, 713 A.2d
390, 399 (N.J. 1998) (noting the “family courts’ special
jurisdiction and expertise in family matters”). Moreover,
appeals from any “final order or decision in a case involving
child abuse” under Title 9 are taken to New Jersey appellate
courts, not to federal court. N.J.S.A. § 9:6-8.70. Even when a
complaint is “drafted in tort, contract, ‘or even under the
federal constitution,’” if the complaint involves matters of
domestic relations, it is generally not within the federal
court’s jurisdiction. New Jersey Div. of Youth and Family Servs.
v. Prown, No. 13-7776, 2014 WL 284457, at *2 (D.N.J. Jan. 24,
2014) (citation omitted).
10.
These statutory provisions are consistent with the
well-settled general understanding that the “‘whole subject of
the domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the
United States.’” Ankenbrandt v. Richards, 504 U.S. 689, 703
(1992) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)). To
the extent that Plaintiffs seek review of any temporary or
permanent child custody or parental rights determinations, this
federal court lacks jurisdiction to entertain these claims.
11.
Younger Abstention. Even if this Court had federal
subject matter jurisdiction over a child custody dispute, which
10
it does not, the doctrine of abstention would bar the present
action, since proceedings are still taking place in state court.
Plaintiffs can raise their constitutional objections to the
state court’s procedures in that court, and if dissatisfied with
that court’s rulings, they may take an appeal within the state
court system and, eventually, to the U.S. Supreme Court, if
desired. All doctrines of abstention serve two common purposes:
“to avoid premature constitutional adjudication in the federal
courts,” Hull v. Petrillo, 439 F.2d 1184, 1188 (2d Cir. 1971),
and “to ensure the proper relationship between the state and the
federal judiciary.” Crane v. Fauver, 762 F.2d 325, 329 (3d Cir.
1985) (internal citations and quotation omitted). In this case,
the Younger doctrine counsels this Court to abstain.
12.
The Complaint is not a model of clarity, but at the
very least, the allegations indicate that there were removal
proceedings pending in New Jersey Superior Court, Family Part,
when this case was filed on October 2, 2017. Plaintiffs allege,
for example, that the Camden Superior Court held a hearing on
August 18, 2017, which Ms. O’Bryant could not attend, and that
the proceedings were postponed until October 5, 2017. Moreover,
as of September 4, 2018, the state court proceedings are still
ongoing, with a permanency hearing having been held before the
New Jersey Superior Court on August 10, 2018, and another
hearing scheduled for November 2, 2018. [Docket Item 41.]
11
13.
Because Plaintiffs’ removal case is still pending
before the New Jersey state court, the Younger doctrine bars
this Court from simultaneous adjudication of those claims. The
Younger doctrine reflects “a strong federal policy against
federal-court interference with pending state judicial
proceedings absent extraordinary circumstances.” Middlesex
County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431
(1982). Under Younger, a federal court should abstain from
enjoining state civil proceedings that implicate important state
interests, and abstention is warranted when: (1) there are
ongoing state proceedings that are judicial in nature; (2) the
state proceedings implicate important state interests; and (3)
the state proceedings afford an adequate opportunity to raise
federal claims. Ocean Grove Camp Meeting Ass’n of United
Methodist Church v. Vespa-Papaleo, 339 F. App’x 232, 236 (3d
Cir. 2009).
14.
All three requirements are satisfied here. First,
Plaintiffs’ state proceedings are judicial in nature, since
removal proceedings are ongoing before the New Jersey Superior
Court. See N.J.S.A. § 9:6-8.24.
15.
Second, the Complaint implicates important state
interests. Issues relating to child custody and parental rights
generally fall under the umbrella of “domestic relations,” and
the Supreme Court has long noted state tribunals’ “special
12
proficiency . . . over the past century and a half in handling
issues that arise” in the area. Ankenbrandt, 504 U.S. at 704;
see also Marshall v. Marshall, 547 U.S. 293, 307 (2006).
Particularly where the question revolves around the status of a
domestic relationship (in this case, the custody status of a
child and possible placement into foster care), the case
implicates “difficult questions of state law bearing on policy
questions of substantial public import whose importance
transcends the result in the case [] at bar,” and is more
appropriate for a state court. Ankenbrandt, 504 U.S. at 705-06;
see also Mayercheck v. Judges of Pa. Sup. Ct., 395 F. App’x 839,
942 (3d Cir. 2010) (noting that domestic relations exception
divests federal courts of jurisdiction over cases involving a
decree of child custody); Matusow v. Tans-County Title Agency,
LLC, 545 F.3d 241, 245 (3d Cir. 2008) (stating same). The
actions of the NJDCPP Defendants and the defendant County law
enforcement officers assisting them to gain peaceful custody of
the children, at issue in the present Complaint, are totally
intertwined with, and at issue in, the Superior Court
proceedings.
16.
Third, there is no reason why Plaintiffs may not raise
their constitutional claims in the ongoing state proceedings.
See Ocean Grove Camp Meeting Ass’n of United Methodist Church,
339 F. App’x at 239. (“To satisfy the third prong of Younger, it
13
is sufficient ‘that constitutional claims may be raised in
state-court judicial review of the administrative proceeding.’”
(quoting Ohio Civil Rights Comm’n v. Dayton Christian Schools,
Inc., 477 U.S. 619, 629 (1986))).
17.
Other Defenses. There is grave doubt that the NJDCPP
can be sued for money damages in federal court. The NJDCPP is
immune from suit in federal court under the Eleventh Amendment
of the U.S. Constitution. The Eleventh Amendment immunizes
states from suit by private parties in federal court, and the
immunity extends to state agencies and departments, or if the
named Defendant is an “arm of the state.” MCI Telecomm. Corp. v.
Bell Atl. Pa., 271 F.3d 491, 503 (3d Cir. 2001). Federal and
state courts in New Jersey have long held that the NJDCPP is,
“beyond dispute,” an “arm of the state” for purposes of
sovereign immunity. Izquierdo v. New Jersey, 2014 WL 234186, at
*2 (D.N.J. Jan. 21, 2014); see also Sweet-Springs v. Dep’t of
Children and Families, 2013 WL 3043644, at *5-6 (D.N.J. June 17,
2013) (finding predecessor to NJDCPP protected by Eleventh
Amendment sovereign immunity); Pena v. Div. of Child & Family
Servs., 2010 WL 3982321, at *4 (D.N.J. Oct. 8, 2010) (same);
Simmerman v. Corino, 804 F. Supp. 644, 650 (D.N.J. 1992) (same);
New Jersey Div. of Youth & Family Servs. v. D.C., 571 A.2d 1295,
1299 (N.J. 1990) (same).
14
18.
Certain defenses may also hinge upon the
determinations being adjudicated in the Superior Court case.
Plaintiffs sue the individual case workers and police officers
involved in the removal of the children. New Jersey law,
however, exempts from liability police officers and “designated
employee[s] of the division” who assist in the removal of a
child from the home. See N.J.S.A. § 9:6-8.29 (“Any person or
institution acting in good faith in the removal or keeping of a
child pursuant to this section shall have immunity from any
liability, civil or criminal, that might otherwise be incurred
or imposed as a result of such removal or keeping.”) This
federal court could not assess whether such “good faith”
immunity is available to the individual defendants herein
without repeating the adjudication being performed in the state
court, which again counsels for abstention because of the
identity of the issues with the merits of the Superior Court
case.
15
19.
Conclusion. In sum, and for the foregoing reasons, the
Complaint will be dismissed for lack of jurisdiction under the
“domestic relations” exception, and alternatively due to
abstention under Younger.4 The accompanying Order will be
entered.
September 5, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
4
Plaintiff Kindra O’Bryant’s suggestion, in her letter of
September 3, 2018, that her letter be deemed a request for
injunctive relief under Fed. R. Civ. P. 65 [see Docket Item 43]
is like dismissed for lack of jurisdiction. Also, to the extent
Plaintiff now claims that the State Court or the NJDCPP
Defendants are denying her children certain benefits under Title
IV of the Social Security Act, that matter is not reviewable in
this Court unless there has be en a final determination of the
Commissioner of the Social Security Administration denying such
benefits in whole or in part, pursuant to the relevant provision
of 42 U.S.C. § 405(g). Therefore, the Court lacks jurisdiction
to address any claim that Social Security Title IV benefits have
been denied unless and until Plaintiff obtains and timely
appeals from a final decision of the Commissioner of the Social
Security Administration.
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