Gibson, et al v. Burdette, et al

Filing 189

MEMORANDUM OPINION AND ORDER denying movant Amanda Underwood's 182 MOTION for an order to show cause; the denial is without prejudice to movant's pursuit of any other available remedies. The court, accordingly, declines to reopen this case. Signed by Judge John T. Copenhaver, Jr. on 6/3/2011. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ERVIN GIBSON and
DIXIE GIBSON,
individually and on behalf
of their children, and
GORDON RENEAU and
ERVIN RENEAU and
GARY RENEAU and
REBECCA GIBSON and
BRENDA GIBSON and
ELLEN FACEMIER,
individually and on behalf
of all her infant children, and
EUGENE FACEMIER and
ROBERT LEE FACEMIER and
ZURR E. DEAL,
individually and on behalf
of his infant child, and
PHYLLIS DEAL and
MARGARET STONE,
individually and on behalf
of her infant child, and
KIM CREW,
individually and on behalf
of a plaintiff class of all
others similarly situated, and
JOSEPH A. GLEICHAUF and
KATRINA GLEICHAUF JEFFERSON,
Plaintiffs
v.

Civil Action No. 2:78-2375

DOROTHY ALLEN,
Assistant Commissioner for Social Services, and
ROSELLA ARCHER,
Director of Protective Services for
the West Virginia Department of Welfare, and
JOHN E. BURDETTE, II and
JOHN BURDETTE,
Area Administrator, Area 17, and
SHARON PATERNO
Head of the Division of Protective Services,
Kanawha County office of the
West Virginia Department of Welfare, and

MARK HUDNALL,
Social Worker, West Virginia Department of Welfare, and
PATRICIA MOORE,
Social Worker working under contract from the
West Virginia Department of Welfare, and
ELMER D. STRICKER,
individually and on behalf of all Circuit Judges
in the State of West Virginia, and
RONALD K. BISCHOFF,
individually and on behalf of a class of all
Prosecuting Attorneys in the State of West Virginia, and
PAUL GIROD,
Area Administrator, Area 19, and
STEVEN FRAME,
Protective Services Supervisor of Nicholas County, and
KATHY KELLY,
Social Worker, West Virginia Department of Welfare, and
DUANNE DRENNEN and
WILLIAM SLEMICK,
Kanawha County Deputy Sheriffs, and
LEON H. GINSBERG,
Commissioner, West Virginia Department of Welfare,
His Successor, and
GRETCHEN LEWIS and
LIZ RHODES,
SSW II, and
JOYCE MCCORMICK,
SSW IV,
Cabell County Social Service Department,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is movant Amanda Underwood’s “MOTION AND
PETITION FOR CONTEMPT AND EQUITABLE, LEGAL, AND FURTHER RELIEF
UNDER THE PRIOR ORDERS OF THIS COURT ON BEHALF OF THE CLASS
MEMBER AMANDA UNDERWOOD; AND TO ENFORCE THE SAID ORDERS, DECREES
OF THIS COURT AND FOR VINDICATION OF THE POWER OF THIS COURT AND
2

THE RIGHTS AND LIBERTY INTERESTS OF PETITIONER; AND PRAYER FOR
DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES PURSUANT TO RULE 57
AND 65 OF FRCP, AND PER 28 USC 2201-2, 1343 ET SEQ., 1331, 1983
AGAINST THE CLASS DEFENDANTS, OR THEIR SUCCESSORS ABOVE” (“motion
for an order to show cause”) filed March 3, 2011.

I.

A.

Background Concerning This 1978 Class Action

On October 12, 1978, plaintiffs instituted this action
alleging the deprivation of rights guaranteed to them by the
First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

They

challenged a number of practices and procedures then in use by
the West Virginia Department of Welfare, now known as the West
Virginia Department of Health and Human Resources (“WVDHHR”), and
others respecting the emergency removal of children from their
parents’ homes.
On January 8, 1979, the court certified a class
consisting of:
All children and their parents and legal guardians who
are residents of the State of West Virginia who are now
or will in the future be the subject of abuse or
neglect proceedings in which the State of West Virginia
through any of these defendants or their successors
3

seeks to terminate or otherwise affect custodial rights
to the children.
Gibson v. Ginsberg, No. 78-2375, slip op. at 2 (S.D. W. Va. Jan.
15, 1979).

On June 8, 1984, the court entered a 34-page Amended

Consent Decree specifying the relief agreed upon by the parties.1
Only two significant events have occurred in the case
over the 27 years that have elapsed following entry of the
Amended Consent Decree, the most recent of which occurring 15
years ago.

First, on June 28, 1989, the court memorialized the

parties’ agreement to resolve certain issues post-dating the
Amended Consent Decree.

Second, on February 21, 1996, Judith A.

Gleichauf, Joseph A. Gleichauf, and Katrina Gleichauf Jefferson
sought an order of contempt and damages as putative class
members.

Their request arose out of the removal of Katrina

Gleichauf Jefferson from her parents’ home in a state court
proceeding Katrina initiated years’ earlier during her teenage
years.2

The Gleichaufs alleged that certain orders entered by

the state circuit court during those proceedings violated the
The Amended Consent Decree superseded an earlier decree
consented to by the parties and approved by the Court on
September 28, 1981.
1

The proceeding that resulted in Katrina’s removal commenced
with a petition initiated by her next friend, Julie Larson.
Katrina alleged that conditions in her mother’s home warranted
removal. She sought that relief, along with a placement in the
home of Ms. Larson.
2

4

Amended Consent Decree.

The court declined to reopen the case,

concluding, inter alia, that inasmuch as Katrina initiated the
state court removal proceeding, as opposed to the defendants or
their successors, the Gleichaufs were not included within the
class definition.

See Gibson v. Ginsberg, 989 F. Supp. 772, 774

(S.D. W. Va. 1996)(“Inasmuch as the custody proceedings
complained of by the Gleichaufs were not initiated by the State
and were not governed by the procedures for abuse and neglect at
issue in this action, the Gleichaufs are not members of the class
protected by the orders entered in this action.”).

B.

Background Concerning the Movant’s Circumstances

Movant resides in Berkeley County.

She is the mother

of two young children, Caydence H. and Chase H.3

Movant asserts

that she and her children are members of the class set forth
above.

She contends that the State of West Virginia is seeking

to unlawfully interfere with her custodial rights in the Circuit
Court of Berkeley County in an ongoing abuse and neglect
proceeding styled In the Interest of Mackenzie H, Nos. 09-JA-10,
09-JA-37 and 09-JA-38.

It appears that at some point in 2010 the children were
ages seven months and two years old respectively.
3

5

On July 10, 2009, as a part of those proceedings,
movant's children were removed from her custody by the WVDHHR.
There was no pre-taking notice.

On July 13, 2009, however, the

Circuit Court of Berkeley County granted emergency temporary
custody to the WVDHHR.

The Amended Order of Temporary Custody,

which appears to name movant, the two children, and others,
states inter alia, as follows:
The Court . . . finds that the contents of the
Petition herein allege that said abuse and/or neglect
constitutes substantial and imminent danger to the
health and welfare of the children and remaining in the
home is contrary to the children’s welfare and that all
reasonable efforts have been made to keep these
children in the home but there is no reasonable
available alternative other than removal of the
children from the parents’ custody; and it further
appearing to the Court that there will continue to be
substantial danger to the health and welfare of the
children unless the child is placed in the temporary
custody of the . . . [DHHR] during the pendency of
these proceedings . . . . [I]t is ADJUDGED AND ORDERED
that the care, custody and control of [the children] .
. . is hereby awarded to the . . . [WVDHHR] . . .
pending preliminary hearing in this matter.
(Defs.’ Resp. and Mot. to Dism., Ex. D at 1-2).
On July 20, 2009, a preliminary hearing was held.

A

guardian ad litem was appointed and appeared in order to protect
the interests of the children.

The circuit court made no

findings respecting imminent danger to the children at that time.
Instead, with the parties' assent, the circuit court restored
6

custody to movant under a safety plan to which she agreed and
with which she claims to have complied.

The circuit court did

not explicitly authorize the WVDHHR to later take custody of the
children anew absent a further hearing respecting imminent
danger.
One week later, on July 27, 2009, however, a WVDHHR
social worker, Mary Carper, directed movant to bring her children
to the Berkeley County WVDHHR office.

Ms. Carper took the

children into custody at that time for, according to movant,
reasons unknown.
taking.

Movant asserts that there was no basis for the

She notes the absence of either a pre-taking notice or

an order transferring custody to the WVDHHR.

She further asserts

that the WVDHHR did not set the matter for a hearing as required
by law.

She contends generally that the July 27, 2009, removal

was done involuntarily and without judicial process or other
procedural safeguards.
DHHR ultimately placed the children with a distant
relative of the children's father.

Except for brief visits,

movant asserts that she has not seen them since July 27, 2009.
Movant suggests that the relative is pursuing adoption.
On November 6, 2010, the circuit court entered an order
terminating movant’s parental rights.
7

The ruling was based upon

a request to that effect by the WVDHHR and the guardian ad litem.
The order was entered following a hearing attended by movant and
her counsel, DHHR and its counsel and agency representatives, and
the guardian ad litem.

The hearing was “held over several days:

May 13, 2010, July 1, 2010, and August 2, 18, 30, and 31, 2010.”
(Defs.’ Resp. and Mot. to Dism., Ex. E at 1).

The order includes

extensive findings of fact:
1.

Movant failed to assure the children were kept current
in their immunizations;

2.

The circuit court noted the concerns of the WVDHHR and
the guardian ad litem respecting possible controlled
substance abuse by movant, for which the court directed
her to submit to hair follicle testing. Movant failed
to appear as directed for the examination but later
submitted follicles which tested negative.

3.

She was directed by the circuit court during a February
2010 hearing to report to the probation department for
controlled substance testing but failed to do so.
Tests performed on other occasions reflected negative
results but movant did not appear for multiple other
tests at various times;

4.

On September 30, 2009, movant apparently agreed to and
commenced an improvement period. The improvement
period plan included requirements for (a) a parenting
assessment, (b) participation in parenting education,
(c) a psychological evaluation, (d) obtaining and
maintaining stable housing and employment, (e)
reporting all changes in residence, (f) seeking
approval for roommates, and (g) completing a substance
abuse evaluation, attending daily controlled substance
screening, and participating in five Narcotics
Anonymous and Alcoholics Anonymous (“NA/AA”) meetings
per week;

5.

Movant admitted that she failed to successfully
complete her improvement period;
8

6.

She did not complete her substance abuse evaluation;

7.

She started, but failed to complete, a parenting
education program;

8.

She failed to secure and maintain stable housing. At
various times she cohabited with two other occupants in
a trailer, stayed with her parents until leaving after
an argument ensued, spent several nights in a motel,
and lived with a new boyfriend in his parents’ home;

9.

She failed to participate in visitation with her
children “including failing to visit during long
stretches of time” (Id. at 6);

10.

She canceled four visitations between February and
March 2010 and other visitations as well, having seen
the children only once between July 13, 2010, and the
November 12, 2010, order of the circuit court; and

11.

She failed to attend the required NA/AA meetings.

(Id. passim).
Based upon these findings of fact, the circuit court
permanently terminated movant’s parental rights, concluding as
follows:
That this Court seriously questions whether . . .
[movant] can adequately parent these two small children
given both her inability to follow through with the
terms of her improvement period and her inability to
adequately provide for herself
That throughout this case, . . . [movant] has
demonstrated a chronic inability to follow
up on any service designed to diminish the conditions
of neglect.
That pursuant to W.Va. Code § 49-6-12, . . . [movant]
failed to demonstrate by clear and convincing evidence
that she successfully completed her improvement period.
9

That . . . [movant] has had over a year to work this
case, and she has demonstrated an inadequate capacity
to solve the problems of neglect on her own or with
help.
(Id. at 11).

The circuit court nevertheless continued movant’s

parental responsibilities in full force and effect, including the
obligation to pay child support.

She was granted visitation

rights, “in the discretion of the care-giver and consistent with
the . . . best interest[s of the children].”

(Id. at 12).

In her reply brief, movant asserts that she “timely
filed a Motion for Reconsideration of the Termination of her
parental rights, [but that] the circuit court has failed to rule
on the same while the illegal retention of her children by the .
. . [WVDHHR] continues and, most importantly, the . . . [WVDHHR]
intends to or has consented to the adoption of the said
children.”

(Pl.’s Reply at 1).
On March 3, 2011, movant filed the instant motion for

an order to show cause.

She contends that her allegations give

rise to claims under the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments, along with the West Virginia Constitution,
West Virginia Code chapter 49, article 6, and the Amended Consent
Decree.

She asserts that WVDHHR “has a pattern o[r] practice or

custom of” retaking “custody of children . . . in Abuse and
10

Neglect cases after they have been returned to the custody of
parents without setting the removal for a hearing or obtaining a
court order finding imminent danger within ten (days) [sic] of
the removal.”

(Id. ¶ 23).

Count One petitions for a contempt finding, asserting
as follows:
37. Defendants violated Paragraph 1 of the
Injunctive Relief of th[e Amended Consent Decree]. . .
to-wit: the WVDHHR took and retained the custody of
Caydence H. and Chase H. without the consent of . . .
[movant] on account of alleged abuse or neglect without
prior judicial authorization and in the absence of
imminent danger to the physical well being of the
children.
38. Defendants violated Paragraph 2 of the
Injunctive Relief of th[e Amended Consent Decree]. . .
by taking and retaining custody of Caydence H. and
Chase H. without the consent of . . . [movant] after a
petition had been presented to the court and the court
had determined there was no imminent danger and had
returned the children to [her] . . . and the
Defendant's [sic] did not obtain a subsequent order of
the court granting them custody of said children.
39. Defendants violated Paragraph 3 of the
Injunctive Relief of th[e Amended Consent Decree]. . .
by contacting . . . [movant] on July 27,2009 and
requiring her to bring the said children to the office
of the WVDHHR without the consent of . . . [movant's]
counselor or a court order and without filing a new
report of suspected abuse or neglect indicating an
emergency situation and a reasonable attempt to contact
counsel.
(Id. ¶¶ 37-39).

11

Count Two seeks a declaratory judgment that, inter
alia, the WVDHHR's removal of Caydence H. and Chase H. violated
movant’s First, Fourth, Fifth, Eighth, and Fourteenth Amendment
rights, along with unnamed portions of the West Virginia
Constitution.

Count Three seeks an injunction, inter alia,

prohibiting WVDHHR from retaining custody of the children.
Count Four is duplicative in all respects of Count One.

Count

Five alleges the negligent and intentional infliction of
emotional distress.
The WVDHHR moves to dismiss.

First, it asserts that

movant and her children do not qualify as class members inasmuch
as they, unlike the class certified in 1979, received adequate
procedural safeguards, including counsel, and suitable judicial
process.

Second, it asserts that movant seeks relief barred by

the doctrine espoused in Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923), and District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983) (collectively the “Rooker-Feldman doctrine”).

II.

The Amended Consent Decree represents a judicial act.
It is not a contract.

That observation is significant from a
12

jurisdictional perspective.

See Thompson v. U.S. Dep’t of

Housing & Urban Dev., 404 F.3d 821, 830 (4th Cir. 2005)(“A
court's ability to modify a consent decree or other injunction
springs from the court's inherent equitable power over its own
judgments.”) (citations omitted).

The mere passage of time does

not interfere with the court’s enforcement jurisdiction in this
setting.

See System Fed'n No. 91 v. Wright, 364 U.S. 642, 647

(1961) (explaining that injunctions “often require . . .
continuing supervision by the issuing court and always a
continuing willingness to apply its powers and processes on
behalf of the party who obtained that equitable relief”);
Brewster v. Dukakis, 3 F.3d 488, 491 (1st Cir. 1993) (“[S]o long
as the injunction endures, the district court's enforcement
authority can always be ‘reawakened.’”); In re Pearson, 990 F.2d
653, 657 (1st Cir. 1993) (“[W]hen ... an injunction entered
pursuant to a consent decree has ongoing effects, the issuing
court retains authority to enforce it.”); Hook v. Arizona Dep't
of Corr., 972 F.2d 1012, 1014 (9th Cir. 1992) (involving a 16
year old consent decree and court of appeals noting: “A district
court retains jurisdiction to enforce its judgments, including
consent decrees. Because the inmates allege a violation of the
consent decree, the district court had jurisdiction.” (citation
omitted)).
13

At the same time, some principles governing consent
decrees overlap with the law of contracts.

For example, in

Thompson the court of appeals observed as follows:
Issues of interpretation and enforcement of a consent
decree typically are subject to traditional rules of
contract interpretation, and the district court's
authority is thus constrained by the language of the
decree.
Thompson, 404 F.3d 821, 832 (4th Cir. 2005); Johnson v. Robinson,
987 F.2d 1043, 1046 (4th Cir. 1993)(noting “consent decrees are
to be interpreted as contracts.”); 46 Am. Jur. 2d Judgments § 195
(2d ed. elec. 2011) (“Judgments by consent are construed and
interpreted as contracts to which the rules governing contract
interpretation or construction apply.”) (footnote omitted).
Some of the primary rules governing contract
interpretation are summarized in the aforementioned legal
encyclopedia:
The explicit language of the judgment is to be given
great weight; deference is to be paid to the plain
meaning of the language of the judgment in the normal
usage of the terms selected.
A consent decree must be construed as it is written and
not as it might have been written . . . .
When interpreting a consent decree, words must be
read in context, each of its provisions being
interpreted together with its other provisions. Absent
ambiguity in the terms of the consent judgment, the
intent of the parties must be ascertained solely from
14

the instrument itself and extrinsic evidence will not
be admitted.
Id. (emphasis added); see also Firefighters Local Union No. 1784
v. Stotts, 467 U.S. 561, 574 (1984)(“It is to be recalled that
the ‘scope of a consent decree must be discerned within its four
corners, and not by reference to what might satisfy the purposes
of one of the parties to it’ or by what ‘might have been written
had the plaintiff established his factual claims and legal
theories in litigation.’”) (quoting United States v. Armour &
Co., 402 U.S. 673, 682 (1971)); Anderson v. Stephens, 875 F.2d
76, 80 (4th Cir. 1989) (same); Willie M. v. Hunt, 657 F.2d 55, 60
(4th Cir. 1981)(“From all this we take two cardinal principles
for interpreting the consent judgment here in issue. First, that
its meaning is properly to be sought within the confines of the
judicially approved documents expressing the parties' consent.
Second, that its meaning is to be sought in what is there
expressed and not in the way it might have been written had the
plaintiffs established their full rights in litigation or if it
had been written to satisfy the purposes of only one of the
parties to it.”).
As noted, the class definition found in the Amended
Consent Decree reads as follows:
All children and their parents and legal guardians who
15

are residents of the State of West Virginia who are now
or will in the future be the subject of abuse or
neglect proceedings in which the State of West Virginia
through any of these defendants or their successors
seeks to terminate or otherwise affect custodial rights
to the children.
Gibson v. Ginsberg, No. 78-2375, slip op. at 2 (S.D. W. Va. Jan.
15, 1979).

The language first underscored above, namely, the

residency requirement, reflects a present sense, measured from
the time of the certification of the class in 1979.

Coverage is

thus confined, inter alia, to all parents and their children “who
are residents” in 1979.

This reading is confirmed by the

language next underscored, namely, the proceedings requirement,
which further explicates the class definition covers not only
those “who are now . . . the subject of abuse or neglect
proceedings” but additionally those who “will in the future be”
so subject.
Counsel and the court might have chosen to adopt an in
futuro construction for both the residency and proceedings
requirements.

They did not do so.

To now adopt an in futuro

construction for the residency requirement would amount to a
material modification not contemplated by the court and the
parties at the time, nor requested by movant.

16

Both children are under five years of age.

Movant was

not their parent, and neither she nor the children were
apparently residents of the state, on either the January 8, 1979,
class certification date or the June 8, 1984, Amended Consent
Decree date.

Neither the movant nor her children are thus

included within the class definition found in the Amended Consent
Decree.

They are hence prohibited from seeking relief for any

contumacious conduct committed by those falling subject to its
terms.
The court, accordingly, declines to reopen this case.
It is ORDERED that the motion for an order to show cause be, and
it hereby is, denied.

The denial is without prejudice to

movant’s pursuit of any other available remedies.
The Clerk is directed to forward copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
DATED:

June 3, 2011

John T. Copenhaver, Jr.
United States District Judge

17