Delahunty v. State of Hawaii

• Decision Date: 30 December 1987
• Docket Number: Civ. No. 87-0881 HMF.
• Parties: Gregory E. DELAHUNTY, Plaintiff, on behalf of himself and minor child Susan Roe, v. STATE OF HAWAII; Department of the Attorney General of the State of Hawaii; Warren Price, Attorney General; Department of Social Services, Division of Child Protective Services; Kathryn Albu; Kenneth Enright; Christine Miwa; Luanne Murakami; Karen Anderson-Kemp; Noreen Delahunty; John Doe and Jane Roes, 1 through 40; State and/or City Entity "A" Through "H", Defendants.
• Court: U.S. District Court — District of Hawaii

677 F. Supp. 1052

Gregory E. DELAHUNTY, Plaintiff, on behalf of himself and minor child Susan Roe, v. STATE OF HAWAII; Department of the Attorney General of the State of Hawaii; Warren Price, Attorney General; Department of Social Services, Division of Child Protective Services; Kathryn Albu; Kenneth Enright; Christine Miwa; Luanne Murakami; Karen Anderson-Kemp; Noreen Delahunty; John Doe and Jane Roes, 1 through 40; State and/or City Entity "A" Through "H", Defendants.

Civ. No. 87-0881 HMF.

United States District Court, D. Hawaii.

December 30, 1987.

Anthony P. Locricchio, Kailua, Hawaii, for plaintiff.

Warren Price, III, Atty. Gen., Steven Michaels, Carl Debo, Honolulu, Hawaii, for defendants.

AMENDED ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION; ORDER OF DISMISSAL

FONG, Chief Judge.

Plaintiff's motion for a preliminary injunction came on for hearing before this court on December 14, 1987. Anthony Locricchio of Kailua, Hawaii appeared on behalf of plaintiff. Stephen Michaels and Carl Debo of the Department of the Attorney General appeared on behalf of the State of Hawaii, Department of the Attorney General of the State of Hawaii, Warren Price, III, Attorney General, Department of Social Services Division of Child Protective Services, Kathryn Albu, Kenneth Enright, Christine Miwa, and Luanne Murakami (the Hawaii defendants).

The parties to this case have alleged facts which indicate an unfortunate series of events incident to a divorce. On June 26, 1987 a South Carolina family court awarded plaintiff Gunnery Sergeant Gregory E. Delahunty (Delahunty) custody of two minor children, presently aged ten and seven. The ten-year-old, referred to here as "Susan Roe", is the focal point of this action. The South Carolina court awarded custody to Delahunty in a decree of divorce between Delahunty and his first wife defendant Noreen Delahunty (Noreen). Susan Roe was Noreen's natural daughter by a prior relationship.

The divorce decree allowed the children to spend thirty days each summer with their mother, who presently lives in St. Louis. While visiting with her mother during the summer of 1987, Susan Roe told authorities that Delahunty had sexually abused her on a regular basis, beginning shortly after Noreen and Delahunty separated in April 1986. She repeated her allegations in several interviews. The Hawaii defendants have provided the court with one of these videotaped interviews, which took place at a St. Louis hospital. Medical tests tend to support the girl's story but are inconclusive.

At the end of their visitation period Noreen refused to return the two children to Delahunty, who had by this time married Jillinda Wachter Delahunty. However, Delahunty remained legal custodian of the children and the children were flown back to Hawaii, through Delahunty's brother, on or about October 26, 1987. In response, Noreen contacted the St. Louis police, who informed the defendant Division of Child Protective Services (CPS) about the girl's allegations of sexual abuse.

Once in Hawaii Susan Roe apparently retracted her allegations. Even so, a CPS social worker—defendant Christine Miwa (Miwa)—conducted a preliminary investigation pursuant to Hawaii's Child Protection Act, Haw.Rev.Stat. Ch. 587 (1985). Plaintiff claims that Miwa continually exceeded her authority during this investigation. The Hawaii defendants in turn allege that plaintiff's counsel repeatedly acted to impede the investigation's progress.

On November 3, 1987 the state filed a verified petition for an ex parte court order granting the state temporary foster custody of the child. The petition was based on Susan Roe's allegations in the St. Louis videotape, as well as upon the medical evidence tending to support those allegations. State Family Court Judge Marjorie Higa Manuia granted the petition pursuant to Haw.Rev.Stat. § 587-32(d). Plaintiff alleges that the petition contains intentionally false and misleading statements made in order to convince the family court that Susan Roe was in imminent danger.

The child was placed in a foster home and the court appointed a guardian ad litem pursuant to Haw.Rev.Stat. § 587-33(c). Although the child has apparently been allowed to visit with plaintiff, he alleges that since taking custody the state has held the child "incommunicado" without permitting her to see medical doctors or a child psychologist chosen by Delahunty. This psychologist had examined Susan Roe on one occasion and, after viewing a videotape of the child made on November 10, 1987, opined that she appeared depressed and at times near panic. He concluded that unless the trend was reversed, there was a chance she could become suicidal.

On November 5, 1987 hearings commenced before Family Court Judge Darryl Y.C. Choy to determine whether, under Haw.Rev.Stat. § 587-53, "continued placement in emergency foster care is necessary to protect the child from imminent harm." Plaintiff's complaint and motion also attack the state family court proceeding. They allege various improprieties on the part of court personnel and on the part of Judge Choy. They also allege that the child's guardian ad litem was selected by the family court in an improper manner and is biased against plaintiff and his counsel. Finally, they protest the fact that the family court has indicated that it will apply a portion of Haw.Rev.Stat. Ch. 587 that plaintiff contends violates his rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution.

Plaintiff alleges that the actions outlined above amount to a deprivation of his constitutional rights in violation of 42 U.S.C. § 1983. His complaint seeks the following injunctive relief:

(1) stay the family court proceeding;

(2) compel the immediate physical examination of Susan Roe, who was allegedly injured in an automobile accident while in state custody;

(3) transfer Susan Roe to the care and custody of Jillinda Delahunty under the terms of a plan prescribed by plaintiff's child psychologist;

(4) order the child's new guardian to take her to plaintiff's child psychologist for examination and preparation of a report to the court;

(5) order the guardian to meet with the child psychologist and other doctors who have been treating Susan Roe to make recommendations in her best interest;

(6) permit the child to testify at any hearing as to the truth of her statements of sexual abuse;

(7) appoint a master available to all Hawaii residents for the purpose of advising the court whether an order superintending control should issue allowing the court to review all termination of parental rights proceedings currently in Hawaii family courts.

Plaintiff sought a temporary restraining order, which the court denied by written order filed December 4, 1987 on the basis that Delahunty had failed to satisfy the requirements of Fed.R.Civ.P. 65(b). On December 10, 1987, after this court denied the application for a temporary restraining order, plaintiff petitioned the Supreme Court of Hawaii for a Writ of Mandamus in Delahunty v. Vitousek, et al., No. 12559, seeking among other things the remedies sought in these proceedings.

Plaintiff has now returned to this court seeking a preliminary injunction and has orally represented that the relief he seeks is confined to enjoining application of Haw. Rev.Stat. Ch. 587 to plaintiff's presently pending temporary custody proceeding.

HAWAII DEFENDANTS' RESPONSE

The Hawaii defendants argue that the court must deny preliminary injunctive relief for a number of reasons. First, the Hawaii defendants are entitled to Eleventh Amendment immunity from suit. Second, Delahunty lacks standing to sue on behalf of Susan Roe, for whom the family court has appointed a guardian ad litem. Third, since plaintiff's claims attack various judgments of a state court, this federal court is without power to review those judgments. Fourth, even if this court does have jurisdiction, it should decline to exercise it pursuant to various abstention doctrines. Fifth, plaintiff's constitutional claims are meritless in view of the state's substantial power to prescribe procedures for adjudicating family law matters. Sixth, plaintiff has not satisfied the standard by which the court determines whether preliminary injunctive relief is appropriate. Hawaii defendants argue that the evidence clearly shows that the child is safe, receiving proper treatment, and is being permitted to visit with her family, including Delahunty. Rather than showing that preliminary relief would redress hardship and wrongdoing, the Hawaii defendants argue that the evidence clearly indicates that injunctive relief would not be in the best interests of the child.

JURISDICTION

As an initial matter, the Hawaii defendants argue that the court lacks jurisdiction over the subject matter of this controversy and that it should therefore dismiss the complaint and motion pursuant to Fed.R. Civ.P. 12(h)(3). It is true that federal courts are courts of limited jurisdiction, and that they have only the power that is authorized by Article III of the Constitution. Bender v. Williamsport Area School District, 475 U.S. 534, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). See, e.g., Marbury v. Madison, 1 Cranch (5 U.S.) 137, 173-180, 2 L.Ed. 60 (1803). Therefore, if it appears to this court that it does in fact lack subject matter jurisdiction, it must dismiss this action.

The Hawaii defendants argue that every one of the issues raised in this complaint has been considered and ruled upon in the state court action. Plaintiff is therefore jurisdictionally barred from taking what is, in effect, a collateral appeal of these rulings to federal court. They point to 28 U.S.C. § 1257, which provides that appeals from final judgments of state supreme courts shall be made before the United States Supreme Court. They also argue for application of the Feldman doctrine, which holds that federal district courts do not have jurisdiction over challenges to final state court judg...