Kolley v. Adult Protective Servs.

• Decision Date: 05 August 2013
• Docket Number: No. 12–1283.,12–1283.
• Parties: Suzanne KOLLEY, Jena Kolley, Joseph Kolley, William Kolley, and Joseph Kolley, Jr., Plaintiffs–Appellants, v. ADULT PROTECTIVE SERVICES, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

725 F.3d 581

Suzanne KOLLEY, Jena Kolley, Joseph Kolley, William Kolley, and Joseph Kolley, Jr., Plaintiffs–Appellants,

v.ADULT PROTECTIVE SERVICES, et al., Defendants–Appellees.

No. 12–1283.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 24, 2013.

Decided and Filed: Aug. 5, 2013.

ARGUED:Nabih H. Ayad, Nabih H. Ayad & Associates, P.C., Canton, Michigan, for Appellants. John G. Fedynsky, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees Adult Protective Services and Fincher. Drew W. Broaddus, Secrest Wardle, Lynch, Hampton, Truex, and Morley, Troy, Michigan, for Appellees House, Murrell, and Holmes. Keith J. Lerminiaux, Oakland County Corporation Counsel, Pontiac, Michigan, for Appellee Neph. Heidi D. Hudson, Zausmer, Kaufman, August, Caldwell & Tayler, P.C., Farmington Hills, Michigan, for Appellees Schuster, Morc, Keefer, Antella, Giperich, Mathes, and Thomas

ON BRIEF

:

Nabih H. Ayad, Nabih H. Ayad & Associates, P.C., Canton, Michigan, for Appellants. Margaret A. Nelson, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees Adult Protective Services and Fincher. Drew W. Broaddus, Secrest Wardle, Lynch, Hampton, Truex, and Morley, Troy, Michigan, for Appellees House, Murrell, and Holmes. Keith J. Lerminiaux, Oakland County Corporation Counsel, Pontiac, Michigan, for Appellee Neph. Heidi D. Hudson, Mark J. Zausmer, Zausmer, Kaufman, August, Caldwell & Tayler, P.C., Farmington Hills, Michigan, for Appellees Schuster, MORC, Keefer, Antella, Giperich, Mathes, and Thomas.

Before: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.

OPINION

BOYCE F. MARTIN, Jr., Circuit Judge.

This case arises out of an investigation by Oakland County Adult Protective Services into the family of Jena Kolley, a developmentally disabled nineteen-year-old, after Jena told her teachers on two occasions that her mother hit her. The Kolleys brought suit against the individuals and organizations that took part in investigating Jena's allegations. The district court dismissed the Kolleys' federal claims for failure to state a claim under Rule 12(b)(6) and refused to grant supplemental jurisdiction over the remaining state claims. The Kolleys now appeal. We AFFIRM the district court.

I.

Jena Kolley is a nineteen-year-old who has Oral Facial Digital Syndrome—a geneticdisorder that causes physical defects of the mouth, tongue, teeth, jaw, face, head, eyes, nose, fingers, and toes, along with severe mental disability. According to her parents, Jena communicates at the level of a child between the ages of five and seven and has the social skills of a child between four and eight. In October of 2008, Jena arrived at school and reportedly told a teacher that her mother, Suzanne Kolley, “hit me.” The incident was referred to the Oakland County Sheriff's Department, which began an initial investigation. On November 6, 2008, Jena again told school officials that her mother hit her, and the school referred the case to Adult Protective Services, a subsection of the Michigan Department of Human Services.

Adult Protective Services set up an interview with Jena at a facility called Care House. Present at the interview were: Defendant Marcie Fincher, as a representative of Adult Protective Services; Detective Neph, from the police department; and Tricia Schuster, a forensic evaluator with Care House. Based on Jena's statements, those present decided to file a Petition for Appointment of a Guardian for Jena Kolley in the Oakland County Probate Court on November 14, 2008. That same day, the court entered an order appointing a new guardian for Jena and authorizing her removal from the family home to a foster home through Macomb Oakland Regional Center in Southfield, Michigan. The Macomb Center placed Jena at Hazel House, a group foster facility. The court appointed Thomas Brennan Fraser as a temporary guardian and on November 18, 2008, appointed Shirley Ann Saltzman as a Guardian Ad Litem.

On December 23, 2008, the court decided to allow Joseph Kolley, Jena's father and noncustodial parent, to be a co-guardian with Fraser. However, on January 28, 2009, Saltzman filed a report challenging Joseph's suitability as a custodian. This led to a hearing that day where the court decided that Jena should stay in the state's care, but that her father Joseph could visit her. The Kolleys allege that at the hearing the defendants additionally offered false testimony that when Joseph visited Jena in late December, he “made sexual connotations towards Jena Kolley and requested that Hazel House give Jena a ‘bikini wax’ or otherwise shave her pubic hair.” The court scheduled another hearing for March 2009. In the hallway after the January 28 hearing, Joseph and at least one of Jena's other family members got into a verbal fight with one of the Macomb Center workers and engaged in allegedly assaultive behavior.

The fight resulted in Fraser filing, on January 29, an Emergency Petition and Order seeking to suspend any visitation by Joseph and the rest of Jena Kolley's family. Jena's Guardian Ad Litem filed a supplemental report recommending that the court deny Joseph and the rest of Jena's family any physical or telephone contact with her. On January 30, the probate court entered an order denying the Kolleys contact with Jena until a scheduled March hearing.

At the March hearing, the probate court restored Joseph's visitation rights. In July 2009, the court decided to place Jena in her father's home and gave Joseph full custody. Criminal charges were initially filed against Jena's mother, Suzanne, but the charges were later dismissed.

In March 2009, the Kolleys filed suit in federal district court, but their case was ultimately dismissed without prejudice based on the abstention doctrine as established in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In May 2010, the Kolleys filed suit again, and the court dismissed some claims, some with prejudice and some without prejudice, and allowed the Kolleys to amend their complaint. Finally, in April 2011, the Kolleys filed an amended complaint advancing three federal claims under section 1983 and six state claims. Regarding the federal claims, the Kolleys allege that the defendants deprived them of their right to familial association and their parental liberty interests in violation of the First and Fourteenth Amendments.

After motions to dismiss by all the defendants, the district court dismissed the federal claims, finding the Kolleys had failed to state a claim under Rule 12(b)(6). The court concluded that Pittman v. Cuyahoga Cnty. Dept. of Children and Family Servs., 640 F.3d 716 (6th Cir.2011), controlled the case. The court refused to grant supplemental jurisdiction over the state claims. The Kolleys now appeal.

II.

“We review de novo a district court's dismissal of a plaintiff's complaint for failure to state a claim under Rule 12(b)(6).” Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir.2006). Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a plaintiff's complaint if it fails to state a claim upon which relief can be granted. Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.” Eidson v. State of Tennessee Dept. of Children's Servs., 510 F.3d 631, 634 (6th Cir.2007).

First, we will assess the Kolleys' claim that the defendants violated their Fourteenth Amendment due process rights by depriving them of their parental liberty interest. The Kolleys allege that they were deprived of their substantive and procedural due process rights when the defendants: petitioned for an ex parte order when no emergency existed; failed to notify Joseph Kolley of the hearings; falsely testified about Joseph Kolley's actions and statements; and took advantage of Jena's disability to make allegations against Suzanne Kolley. The actions allegedly resulted in Joseph Kolley being denied custodial rights.

There are two types of deprivations that support substantive due process claims: “(1) deprivations of a particular constitutional guarantee; and (2) actions that ‘shock the conscience.’ ” Pittman, 640 F.3d at 728. This claim deals with the first type of deprivation—deprivation of a constitutional guarantee, particularly the right to the maintenance of a parent-child relationship. While “the Supreme Court has repeatedly reaffirmed the existence of a constitutional right to the maintenance of a parent-child relationship,” that right is “neither absolute nor unqualified.” Kottmyer, 436 F.3d at 689–90. Thus, a government investigation of child abuse will not automatically implicate the right to familial association, id., absent “evidence of bad faith, improper motive, or investigation tactics that ‘shock the conscience.’ ” Teets v. Cuyahoga Cnty., Ohio, 460 Fed.Appx. 498, 502 (6th Cir.2012) (citing Kottmyer, 436 F.3d at 691 & n. 1).

The district court relied almost exclusively on Pittman in dismissing the Kolleys' substantive due process claims, and we agree that Pittman's analysis applies to this case. In Pittman, a father, Ricky Pittman, brought a section 1983 action against the Cuyahoga County Department of Children and Family Services and the primary social worker for Pittman's son, who had been removed from his mother's custody by Cuyahoga Family Services. Pittman, 640 F.3d at 718. Pittman claimed the defendants had “unconstitutionally deprived him of his fundamental right to family integrity, failed to accord him requisite due process before awarding custody to [his son's grandmother], and acted wantonly and recklessly in the state court custody proceedings.”...