Brown v. Jones, Civ. A. No. CA-7-78-82.

• Decision Date: 19 March 1979
• Docket Number: Civ. A. No. CA-7-78-82.
• Citation: 473 F. Supp. 439
• Parties: Allen BROWN and Gennie Brown, Plaintiffs, v. Jim JONES, Supervisor, Child Welfare Unit, Wichita County Family Court Services, Helen Hicks, Child Welfare Counselor, Texas Department of Human Resources, and the State of Texas, Defendants.
• Court: U.S. District Court — Northern District of Texas

473 F. Supp. 439

Allen BROWN and Gennie Brown, Plaintiffs, v. Jim JONES, Supervisor, Child Welfare Unit, Wichita County Family Court Services, Helen Hicks, Child Welfare Counselor, Texas Department of Human Resources, and the State of Texas, Defendants.

Civ. A. No. CA-7-78-82.

United States District Court, N. D. Texas, Wichita Falls Division.

March 19, 1979.

COPYRIGHT MATERIAL OMITTED

Gene Douglass, Wichita Falls, Tex., for plaintiffs.

Tom Schrandt, William H. Harris, Wichita Falls, Tex., Ann Clarke Snell, Asst. Atty. Gen., Austin, Tex., for defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. HILL, District Judge.

Came on for consideration defendants' motion to dismiss the above-styled cause of action. Having reviewed the motion and the briefs of the parties, the court is of the opinion that, except for the plaintiffs' action based on defendants' threatened use of the Child Abuse and Neglect Report and Inquiry System ("CANRIS"), the motion should be granted. With respect to the plaintiffs' request for equitable relief based on defendants' use of CANRIS, the court is of the opinion that such relief should be granted.

I. The Facts

Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and seek injunctive relief with respect to a pending state proceeding which was instituted by defendant Helen Hicks ("Hicks") in order to terminate the parent-child relationship existing between plaintiffs and their child, Bryan J. Brown ("child"). Plaintiff Allen Brown ("Mr. Brown") is the natural father of the child and is married to plaintiff Gennie Brown ("Mrs. Brown"), who is not the natural mother of the child. The plaintiffs also have three other children, who are Shelly Denay Brown, a child of Mr. Brown's prior marriage, and Monica Sue Willey and Dewayne Eugene Castleberry, children of the prior marriages of Mrs. Brown. Defendant Hicks is a child welfare counselor of the Wichita County Family Court Services, and defendant Jim Jones ("Jones") is the supervisor of the child welfare unit. Also named as defendants are the Texas Department of Human Resources and the State of Texas. The guardian ad litem of the child has intervened in this action without objection by the parties. The facts which give rise to this lawsuit are summarized in the following manner and are drawn from the pleadings, the stipulations of fact, and the evidence presented at the preliminary injunction hearing.

On November 16, 1978, the child sustained an injury to his head, a subdural hematoma, and was taken to the Sheppard Air Force Base Hospital Emergency Room. He remained confined in various hospitals until approximately a week before Christmas. On November 16 Hicks filed an original petition for the emergency protection of the child in the juvenile court of Wichita County. This petition requested the court to issue an order appointing the child welfare unit as the temporary managing conservator of the child, and the administrator of the hospital as temporary possessory conservator of the child. The order was granted by the court, but no date was set for a hearing on the matter in such order. At the time Hicks filed the petition, she did not have possession of the child, who was confined in the hospital in critical condition, and she did not deliver the child to the court. The plaintiffs were not formally notified about the petition or order, although there is evidence that Mr. Brown had some knowledge of the proceedings.

On the next day, November 17, Hicks appeared before Judge Temple Driver, a state district court judge, and made an oral, unsworn request for an emergency protection order for the other three children. This request was made without notice to the plaintiffs. Judge Driver orally granted the request. At this time, Hicks did not have possession of the children nor did they appear before the court. A written petition requesting an emergency protection order was later filed by Hicks on the same day, and a written order was also entered by Judge Driver. At approximately 3:00 p. m., a hearing was held in Judge Driver's court regarding the emergency protection orders issued for the four children. William Harris was appointed guardian ad litem for the children by the court. Mr. Brown was present at this hearing, but was not allowed to respond to any of Hicks' representations to the court. Mrs. Brown was not present at the hearing since she was confined in a psychiatric ward at that time.

Thereafter, at Hicks' request, Judge Driver on November 21 entered an order allowing release of the medical records of the child to the appropriate representative of the welfare unit. This order was issued without notice to the plaintiffs and without their consent. On November 22 Hicks filed an original petition affecting the parent-child relationship, wherein she sought to terminate the parent-child relationship existing between plaintiffs and their four children. Plaintiffs were served with this petition, and a hearing was set for November 27. By the date of the hearing, plaintiffs answered and raised their objections to the proceedings. At the hearing plaintiffs were also represented by counsel. At the conclusion of Hicks' presentation of evidence, Judge Driver granted plaintiffs' motion to dismiss with respect to the three children other than the child. Judge Driver also acknowledged that the burden of proof would be upon the state. Hicks testified at the hearing that with respect to this case she would make a report of suspected child abuse into the Texas Department of Public Welfare's computerized child abuse and neglect reporting system, CANRIS. On November 29 Judge Driver entered a temporary order appointing the supervisor of the Wichita County Child Welfare Unit, Jones, as temporary managing conservator of the child, and Juanita and Marvin Brown, the grandparents of the child, as his temporary possessory conservators. On December 19 plaintiffs filed a motion to appoint themselves as co-possessory conservators and to specify visitation privileges. On January 2, 1979, Judge Driver entered an order setting a date for a final hearing on the matter, February 8. On January 3 Judge Driver entered his findings of fact and conclusions of law regarding the November 27th hearing. He found by clear and convincing evidence and by a preponderance of the evidence that for the protection of the child the orders concerning the possessory and managing conservatorships should be continued during the pendency of the cause.

Plaintiffs filed their federal suit on December 20, 1978, and raised numerous objections to the state proceedings involving the child. More specifically, they contend that their constitutional rights of substantive and procedural due process as well as their right of privacy have been violated by defendants' actions: (a) in failing to take the child before the court at the time the emergency protection order was issued; (b) in issuing and obtaining emergency protection orders for the child without notice to plaintiffs; (c) in failing to set out the factual basis in writing by way of application for the emergency protection orders and petitions affecting the parent-child relationship; (d) in failing to grant plaintiffs an adversarial hearing on due notice prior to the filing of the two petitions affecting the parent-child relationships; (e) in filing the two petitions affecting the parent-child relationship without a judicial order to do so; (f) in placing upon plaintiffs the burden of showing cause why the relief requested by Hicks should not be granted; (g) in applying the burden of preponderance of the evidence rather than clear and convincing evidence at the November 27 hearing; (h) in holding the November 27 hearing more than ten days after the initial seizure of the child; (i) in issuing the order allowing the representative of the welfare unit to have access to the child's records; and (j) by Hicks' threatened input of the alleged child abuse information into CANRIS absent or contrary to a judicial determination concerning such information. With respect to the other three children, plaintiffs' contentions for the most part are moot since the state proceedings concerning them have been dismissed and custody returned to the plaintiffs. Plaintiffs seek no damages concerning the actions taken with respect to the three children. The defendants have moved to dismiss on the grounds that under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), this court should exercise equitable restraint and refrain from interfering with the pending state proceeding regarding plaintiffs and the child.

II. The Sims Case

In Sims v. State Department of Public Welfare, 438 F.Supp. 1179 (S.D.Tex.1977), prob. juris. noted sub. nom., Moore v. Sims, 439 U.S. 925, 99 S.Ct. 306, 58 L.Ed.2d 317 (1978), a three-judge court considered the constitutionality of the Texas statutes dealing with summary seizure of children who are subjected to suspected child abuse. Similar to the facts in this case, the plaintiffs' children in Sims had been seized summarily by a case worker for the county child welfare unit. A day after the seizure, the welfare unit instituted a suit for the protection of children in an emergency. The state court issued an ex parte order removing the children from the custody of their parents. Five days later, the parents presented a motion for modification of the ex parte order. They also filed a writ of habeas corpus with the state court. Five days after these events, a hearing was held on the habeas petition. The merits of the parents' objections were not reached, however, since the state court concluded that proper venue lay in another county. At the same time, the state court also directed the county child welfare unit to file a suit affecting the parent-child relationship, and another ex parte temporary order was issued by the state court. Approximately two weeks after the transfer, the parents filed a suit in...