Castorr v. Brundage, 81-1638

• Decision Date: 23 March 1982
• Docket Number: No. 81-1638,81-1638
• Citation: 674 F.2d 531
• Parties: William and Mary Lou CASTORR, Plaintiffs-Appellants, v. John M. BRUNDAGE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 531

674 F.2d 531

William and Mary Lou CASTORR, Plaintiffs-Appellants, v. John M. BRUNDAGE, et al., Defendants-Appellees.

No. 81-1638.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 3, 1982.

Decided March 23, 1982.

Kurt Berggren, Ann Arbor, Mich., for plaintiffs-appellants.

Phillip E. Harter, Holmes, Harter & Mumford, Battle Creek, Mich., Janis Meija, William K. Basinger, Asst. Attys. Gen., Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Janis Meija, Ronald W. Carlson, Asst. Attys. Gen., Lansing, Mich., for defendants-appellees.

Before KEITH and MERRITT, Circuit Judges, and PHILLIPS, Senior Circuit judge.

PHILLIPS, Senior Circuit Judge.

This appeal involves yet another effort to confer domestic relations and child custody jurisdiction upon a federal court. The complaint is a collateral attack upon the decision of appellee John M. Brundage, Judge of the Juvenile Division of the Probate Court of Calhoun County, Michigan, awarding custody of Donald Wayne Castorr, who was seven years old at the time of the decision of the Juvenile Judge. Custody was awarded to foster parents over the objection of appellants, the natural parents. The decision of Judge Brundage, dated June 22, 1977, is made an appendix to this opinion.

I

Judge Brundage was affirmed April 10, 1978, in a well reasoned seventeen page opinion rendered by Judge Stanley Everett of the Circuit Court of Calhoun County, Michigan, holding that the decision of Juvenile Judge was supported by clear and convincing evidence.

The Court of Appeals of Michigan affirmed the Circuit Court on June 28, 1979. The Supreme Court of Michigan denied leave to appeal on December 21, 1979.

As described by District Judge Benjamin F. Gibson, the complaint in the present case relies upon a "panoply of statutory, constitutional and common law doctrines." Jurisdiction was asserted in the following language:

This is an action for a Writ of Habeas Corpus, Preliminary and Permanent Injunction, Declaratory Judgment, and Damages, arising under Section 1 of the Civil Rights Act of 1971 (sic), 42 U.S.C. Section 1983, 1988; the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution, and common law habeas corpus to Article I, Section 6 of the United States Constitution....

Plaintiffs sued for $500,000 in damages against all defendants and punitive damages of $10,000 against the foster parents and Patrick Anderson, a social worker of the Michigan Department of Social Services. Plaintiffs asked the district court to hold unconstitutional the Michigan statutes dealing with termination of parental rights and to order that the child, Donald, be returned to the custody and control of his natural parents. District Judge Gibson dismissed the complaint.

We affirm the decision of the district court on the following grounds:

(1) Plaintiffs' claim for habeas corpus relief is judicially inappropriate;

(2) The claims based on civil rights statutes are barred by res judicata;

(3) Judicial immunity bars plaintiffs' claim for damages against State Judge John M. Brundage.

(4) Plaintiffs' claim for damages against the Michigan Department of Social Services is barred by the Eleventh Amendment.

II

Donald Wayne Castorr, the youngest of the appellants' six children, was born on August 7, 1970. He weighed four pounds, 13 ounces at birth. Mrs. Castorr testified that she believed he weighed 17 or 18 pounds at one year of age. At the beginning of the school year in 1975, when Donald was five years old, the school authorities suggested that the Castorrs' family physician examine Donald, because he did not seem physically and psychologically prepared to attend school. The family physician referred Donald to Dr. Alfred Hamady, a pediatrician. Dr. Hamady examined Donald and decided to place him in the Leila Hospital in Battle Creek, Michigan, for more thorough examination.

At the time Donald was admitted to the hospital, he weighed 20 pounds and was 343/4 in height. An average five year old boy weighs 40 pounds and is 40 in height. If Mrs. Castorr's estimation of Donald's weight at age one is correct, Donald had gained only two or three pounds in four Donald's condition was diagnosed as "psychosocial dwarfism," or "deprivational dwarfism." This condition, according to Dr. Hamady, is caused by parental neglect, especially neglect by the mother. The lack of emotional interaction and maternal bonding between mother and child evidenced by absence of physical contact such as kissing, holding and hugging, can result in subnormal development in several respects, including height and weight.

years. Further, his bone development was that of a two to two and one-half year old, and he walked like a two year old. Donald was not yet toilet trained and still wore diapers at age five. In short, he was grossly underdeveloped mentally, physically and emotionally as compared to normal children of his age.

A report on Donald's condition was given to the Michigan Department of Social Services (MDSS). The Department sought a temporary care order so that Donald's hospitalization could continue. Judge Brundage issued the temporary care order pending a preliminary hearing on September 19, 1975. At the preliminary hearing, Judge Brundage authorized the MDSS to file a petition against the Castorrs and placed the child in foster care following his discharge from hospitalization.

The petition was amended on February 17, 1976. On that same day, Judge Brundage held a jurisdictional hearing. The Probate Court took jurisdiction over Donald and made him a temporary ward of the court. The parents stipulated to several medical, sociological and psychological reports and consented to Donald's continued placement in foster care. Donald's parents were ordered to participate in counseling. The final decision as to whether Donald would return to his natural parents was deferred until a dispositional hearing.

Pending the dispositional hearing, Judge Brundage allowed limited visitations between Donald and his parents and ordered further medical and social evaluations of Donald's condition. At the dispositional hearing, Judge Brundage heard extensive testimony, including a considerable amount of expert evidence. The opinions of the expert witnesses conflicted on the question of whether the Castorrs' parental rights should be terminated. One fact, however, was clearly established. Donald's overall condition had improved dramatically since he had been removed from the Castorr home.

Donald was placed in the hospital on September 15, 1975. In less than a month he had gained five pounds in weight, probably more than he had gained in the preceding four years, and was one-half inch taller. On October 3, 1976, Donald was placed in the home of Mr. and Mrs. Leonard Shumate as foster parents. He was their first foster child. They had two other living children, a son age 12 and a daughter age five. They had lost a daughter at the age of two. Donald's remarkable "catch-up growth" has continued while he has been in the care of his foster parents. By August 23, 1976, Donald had gained 12 pounds and had grown five inches in height. An average child of his age would have gained four to five pounds and grown two inches in height during a comparable period.

There also were remarkable improvements in Donald's mental, social and psychological conditions. Mrs. Shumate testified that only two days were required to toilet train him. At the time he arrived at the Shumate home, Donald was afraid of the grass and the sun. He would eat only milk and dry cereal. Within a few weeks, he began sampling and eating other foods. He began to play with other children. He learned to dress himself and brush his teeth. He no longer feared taking a bath. His abusive and sometimes violent behavior had ceased. All the experts agreed that this was a textbook case of "psychosocial dwarfism" or "deprivational dwarfism," and that there was no doubt that Donald was a happier, healthier and better adjusted child after his placement in foster care.

Further testimony at the dispositional hearing indicated that Donald's natural parents, the appellants, had not realized the nature and cause of their son's condition. The experts who testified on behalf of the All four of the expert witnesses for the MDSS recommended termination of parental rights. The experts for both parties were in general agreement that a disposition should be made quickly.

Castorrs proposed a program in which Donald would return to the Castorr home, but the terms of the proposed program were vague and prospective and the chances for the program's success were not found to be convincing. Mr. and Mrs. Castorr did not testify. Judge Brundage concluded that "the child has suffered enough damage from underdevelopment that the court can not take the risk of further damage by returning the child to the custody of the persons in whose care the original damage occurred."

After taking the case under advisement, Judge Brundage terminated the parental rights of the Castorrs. His rationale is set forth in his opinion, appendix hereto.

III

District Judge Gibson appointed Thomas D. Geil, an attorney of Battle Creek, Michigan, as guardian ad litem and next friend for Donald Castorr, removing William Castorr as next friend to his son, because of the father's potential conflict of interest in challenging the validity of the order of the Juvenile Judge. Mr. Geil also had been appointed guardian ad litem by Judge Brundage in the State court proceedings. The guardian ad litem has filed an able and convincing 27 page brief in this court urging affirmance of the decision of the district judge. Since Mr. Geil was serving as guardian ad litem and next friend for Donald, the district court held that only he would have standing to seek a writ of habeas corpus, and that Mr. and Mrs. Castorr did not have standing to seek habeas corpus relief.

We agree there are strong arguments in...