Chesmore v. CPS

Decision Date18 April 2022
Docket NumberCV 21-49-BLG-SPW-TJC
PartiesASHLEY DAWN CHESMORE, Plaintiff, v. CPS; SCOTT. D. TWITO; SCOTT J. PEDERSON; AUSTIN KNUDSEN; KATIE F. SCHULZ; MICHAEL P. SINKS, Defendants.
CourtU.S. District Court — District of Montana

ASHLEY DAWN CHESMORE, Plaintiff,
v.

CPS; SCOTT. D. TWITO; SCOTT J. PEDERSON; AUSTIN KNUDSEN; KATIE F. SCHULZ; MICHAEL P. SINKS, Defendants.

No. CV 21-49-BLG-SPW-TJC

United States District Court, D. Montana, Billings Division

April 18, 2022


FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

Timothy J. Cavan United States Magistrate Judge

Plaintiff Chesmore filed this action on May 4, 2021. She challenges the termination of her parental rights by a court of the State of Montana. See Compl. Doc. 2 at 1. At the time she filed, Chesmore was a federal prisoner proceeding pro se.

On June 23, 2021, the Court explained that Chesmore's complaint failed to state a claim in most respects but gave her an opportunity to amend it by alleging additional facts. She responded to the on September 22, 2021, and has since been released from custody.

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I. Screening

Because Chesmore was a prisoner at the time she filed the complaint and is proceeding in forma pauperis, the Court must review the complaint to determine whether it fails to state a claim on which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(a), (b)(1). A federal court must liberally construe pleadings filed by unrepresented prisoners and extend an opportunity to amend where appropriate. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Nonetheless, the Court must dismiss a claim when its defects cannot be cured by amendment. See 28 U.S.C. §§ 1915(e)(2), 1915A(b).

II. Chesmore's Allegations

Chesmore's complaint alleged that her civil rights were violated because she was not permitted to be present for hearings regarding her children. She stated that her attorney, Defendant Sinks, did not answer her calls or letters and failed to help her regain her parental rights. She also asserted that the County Attorney, Defendant Twito, gave false information and the Attorney General and Assistant Attorney General, Knudsen and Schulz, respectively, did not conduct an accurate review of the case file to confirm the accuracy of the information presented.

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Chesmore stated that she filed guardianship papers, but they were not considered before her parental rights were terminated. She also named “CPS” and a deputy county attorney, Defendant Pederson, but did not make any allegations against them. See Compl. (Doc. 2) at 3 ¶ III. For her relief, Chesmore sought restoration of her parental rights. She also asked “to be left alone by the State of Montana [Department of Public Health and Human Services].” Id. ¶ IV.

The Court explained that it would not restore Chesmore's parental rights or require the State to “leave her alone.” But it appeared she might state a claim supporting relief if she was deprived of adequate notice and/or an opportunity to be heard before her parental rights were terminated. The Court explained the nature of additional facts that would be relevant. See Order (Doc. 4) at 3-4.

Chesmore was unable to supply a copy of the Montana Supreme Court's decision of her appeal with her response to the Order. See Resp. to Order (Doc. 10) at 5. With the additional information she provided, however, the Court was able to locate it. See In the Matter of D.A.D., M.J.D., and C.M.D., 478 P.3d 809 (Mont. 2021). The opinion clarifies the course of the proceedings in state court.

Counsel Kevin Sweeney represented Chesmore in the state district court. See Resp. to Order (Doc. 10) at 2. After the State petitioned in August 2019 to

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terminate her rights, Chesmore moved to dismiss the petition on the grounds that she had “sought and secured family to care for her children . . . during her incarceration.” See Matter of D.A.D., 478 P.3d at 812 ¶¶ 6-7. She also contested the State's evidence. See id. ¶ 7. A hearing on the termination petition was held on January 2, 2020, four months after the petition's filing. Chesmore testified, as did several other witnesses. See id. at 812-13 ¶¶ 9-11.

On appeal, represented by appellate counsel Defendant Sinks, see id. at 4, Chesmore asserted that Sweeney provided ineffective assistance in violation of her state-created right to counsel. See Matter of D.A.D., 478 P.3d at 813-14 ¶¶ 14-15; see also In re A.S., 87 P.3d 408, 411-13 ¶¶ 12-20 (Mont. 2004). She claimed that counsel should not have conceded that she “had subjected the children to ‘chronic, severe neglect'” under the controlling statute, and that he should have challenged the district court's finding to that effect because it had “hardly any support in the record.” Matter of D.A.D., 478 P.3d at 813 ¶ 14.

In her response to this Court's order, Chesmore asserts that the state district judge “ignored” the guardianship paperwork she prepared and filed with her family's help, see Resp. to Order (Doc. 10) at 3; that she could have “objected to the decisions” and “show[n] more evidence,” id., and corrected misinformation

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about one of the three occasions her children had been removed from her care, id. at 5-6, if she had been able to participate in more hearings; that her family members were unable to obtain custody of her daughter, id. at 4; that appellate counsel Sinks failed to communicate with her, id. at 5; and that “the lower courts and DPHHS (CPS) violated our Family Preservation right by not keeping the children together and with family,” id.

III. Analysis

Chesmore filed her complaint under 42 U.S.C. § 1983. See Compl. (Doc. 2) at 1, 3 ¶ III. The complaint implicates federal-question jurisdiction. See 28 U.S.C. § 1331; see also, e.g., Atwood v. Fort Peck Tribal Court, 513 F.3d 943, 947 (9th Cir. 2008); see also, e.g., Deem v. DiMella-Deem, 941 F.3d 618, 623 (2d Cir. 2019).

A. Notice and Opportunity to Be Heard

As the Court explained in the Order of June 23 (Doc. 4 at 3-4), if Chesmore could show that she was deprived of adequate notice and/or an opportunity to be heard before her parental rights were terminated, she might state a claim on which relief could be granted. Clarifying that point, the Montana Supreme Court's opinion demonstrates that Chesmore was not deprived of due process. See Matter

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of D.A.D., 478 P.3d at 810-13, ¶¶ 2-12.

B. Rooker-Feldman Doctrine

When a plaintiff asserts a claim arising from a state court proceeding that has concluded, the federal court must ask whether she is, in effect, asking it to overrule or vacate the state court's judgment-or, in other words, taking a de facto appeal. This question arises because a federal district court has no appellate jurisdiction over a state court. Only the United States Supreme Court exercises appellate jurisdiction over state courts' judgments. See 28 U.S.C. §§ 1257(a), 1331. The Supreme Court has therefore developed a doctrine, named after two cases called Rooker and Feldman, to determine when a litigant is taking an unauthorized appeal by calling it a lawsuit. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983).

Because the Rooker-Feldman doctrine goes to a federal court's subjectmatter jurisdiction, the Court not only may but must raise it sua sponte. See Fed.R.Civ.P. 12(h)(3); Worldwide Church of God v. McNair, 805 F.2d 888, 890-91 (9th Cir. 1986). Rooker-Feldman applies to cases brought by parties who lost a case in state court, and who “complain[] of injuries caused by state-court judgments

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rendered before the [federal] district court...

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