Donker v. City of New York Human Resources Admin.

• Decision Date: 20 October 1987
• Docket Number: No. 87 Civ. 6772 (RWS).,87 Civ. 6772 (RWS).
• Parties: Mary DONKOR and MacAnthony Donkor, Plaintiffs, v. CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION SPECIAL SERVICES FOR CHILDREN, Eric Brettschnieder, Chief Administrator Special Services for Children; Yvonne Thorton, Lisa Godell and Diana Lopez, Caseworkers Special Services for Children (Godell, Thorton and Lopez are sued individually and in their capacities); Montefiore Medical Center, Lea Harrison and George Foltin (Harrison and Foltin are sued individually and in their capacities as medical personnel of Montefiore Medical Center), Defendants.
• Court: U.S. District Court — Southern District of New York

673 F. Supp. 1221

Mary DONKOR and MacAnthony Donkor, Plaintiffs, v. CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION SPECIAL SERVICES FOR CHILDREN, Eric Brettschnieder, Chief Administrator Special Services for Children; Yvonne Thorton, Lisa Godell and Diana Lopez, Caseworkers Special Services for Children (Godell, Thorton and Lopez are sued individually and in their capacities); Montefiore Medical Center, Lea Harrison and George Foltin (Harrison and Foltin are sued individually and in their capacities as medical personnel of Montefiore Medical Center), Defendants.

No. 87 Civ. 6772 (RWS).

United States District Court, S.D. New York.

October 20, 1987.

C. Vernon Mason, New York City, for plaintiffs.

Peter L. Zimroth, Corp. Counsel, New York City, for city defendants; Tai Park, Asst. Corp. Counsel, of counsel.

Garfunkel, Wild & Travis, P.C., Great Neck, N.Y., for Defendants Montefiore Medical Center, Lea Harrison and George Foltin; Leonard M. Rosenberg, of counsel.

OPINION

SWEET, District Judge.

Mary Donkor and MacAnthony Donkor (the "Donkors") filed a petition for a writ of habeas corpus ("Petition") seeking custody of their two daughters from defendant New York City Human Resources Administration-Special Services for Children ("HRA-SSC"). The Petition also names as defendants the former Chief Administrator and three individual caseworkers of HRA-SSC, Montefiore Medical Center ("Montefiore"), George Foltin, M.D., a physician at Montefiore, and Lea Harrison, a healthcare worker at Montefiore. The Petition alleges violations of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, and pendant state law claims. All parties having submitted affidavits and exhibits in support of their positions, defendants' motion to dismiss will be treated as a motion for summary judgment to dismiss the Petition on grounds of lack of subject matter jurisdiction and abstention. Oral argument was held on the motions on October 9, 1987. Upon the following facts and conclusions, the Petition is dismissed.

Facts

The Donkors are Ghanian nationals and lawful permanent United States residents who live in Bronx, New York. They have two daughters, Andrea (age 5) and Crystal (age 2), who since April 1986 have been living in foster homes in which they were placed by HRA-SSC. The Petition alleges the following facts which are accepted as true unless indicated otherwise.

On March 17, 1986, MacAnthony Donkor brought Andrea to Montefiore for a physical examination to qualify the infant for day care and for advice concerning the infant's vaginal irritation. Mr. Donkor informed Dr. Foltin that his wife had applied a preparation of ginger and water to Andrea's vaginal area as is the customary treatment in their home country for vaginal and genital irritations. Dr. Foltin objected strenuously to this form of treatment and informed the Donkors that he intended to file allegations of child abuse with HRA-SSC.

On April 2, 1986, Diana Lopez, an HRA-SSC caseworker ("Lopez"), visited the Donkors at home and interviewed Andrea. At the end of the interview, Lopez reported to the Donkors that the child had told her she had placed crayons, pennies and pencils in her vagina. Lopez informed the Donkors that this behavior could be explained as the child's "phallic stage" and was not a significant problem. However, less than three weeks later on April 21, Lopez returned to the Donkor's home with police officers and took custody of Andrea and Crystal, leaving a handwritten note with a babysitter that did not specify reasons for removal or procedures for locating the children.

Based on the foregoing factual allegations, the Donkors have alleged that Dr. Foltin without just cause forwarded allegations of sexual abuse of Andrea to HRA-SSC and fabricated findings that Andrea's hymen was not intact and that she suffered from a sexually transmitted infection known as chlamydia. The Petition also alleges that Dr. Foltin conspired with Lopez, Harrison and others to remove Andrea and Crystal from their parent's home. Finally, the Petition alleges that certain individual defendants falsified documents and provided perjured testimony to support the allegations of sexual abuse against the Donkors. The Petition requests issuance of a writ of habeas corpus directing HRA-SSC to deliver Andrea and Crystal to the custody of their parents "pending the determination of this petition." The Petition also requests compensatory and punitive damages on behalf of the Donkors.

The defendants offer the following additional facts, which are denied by the Donkors.

In response to Mr. Donkor's March 17 request to have Andrea examined, Dr. Foltin examined the child on March 31, 1986 and noted in his report that Andrea appeared to have an enlarged vaginal opening, scarring on her vagina and that her hymen was not intact. Dr. Foltin ordered a culture to test for chlamydia which was returned as positive on April 7, 1986. On April 18 a chlamydial culture taken from Mr. Donkor was returned positive.

After taking protective custody of Andrea and Crystal on April 21, 1986, HRA-SSC filed a child abuse petition with the New York State Family Court, County of the Bronx ("Bronx Family Court"), alleging sexual abuse of Andrea by her father. On June 10, June 25 and July 1, 1986, the Bronx Family Court held evidentiary hearings at which the Donkors appeared represented by counsel. On July 1, the Bronx Family Court issued a finding of child abuse against the Donkors and scheduled a disposition hearing to determine the appropriate placement for the children. After hearing further testimony on September 9, November 1, 1986 and January 8, 1987, the Bronx Family Court issued a final order of disposition directing HRA-SSC to retain custody of Andrea and Crystal for a period of eighteen months ("January 8 Order").

The Donkors have not appealed from the January 8 Order of the Bronx Family Court to the New York State Supreme Court, Appellate Division. Although on June 11, 1987, the Donkors filed a request for return of their children with HRA-SSC, they have not petitioned the Bronx Family Court for review of their request or for a modification or setting aside of the January 8 Order. Instead, on September 22, 1987, the Donkors commenced this action for a writ of habeas corpus by serving defendants on that date with an order to show cause.

Based upon these facts, the defendants contend that because (i) the Donkors have not exhausted their state remedies and (ii) the Bronx Family Court has continuing jurisdiction over this matter, this court is without jurisdiction over the subject matter of this dispute and, in any event, should abstain from intervening in an ongoing state court proceeding.

I. Jurisdiction Under 28 U.S.C. § 2254

The Donkors seek habeas corpus collateral review by a federal court of the Bronx Family Court decision. Although the Petition does not specify the statutory provision relied upon for the requested habeas relief, the vehicle for habeas corpus relief from a state court decision is 28 U.S.C. § 2254(a), which provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

The defendants argue that federal jurisdiction is not available under § 2254 because (1) the writ does not encompass child custody matters and (2) the Donkors have failed to exhaust their state remedies as required by 28 U.S.C. §§ 2254(b), 2254(c). Because the defendants' primary contention is correct, consideration of the Donkor's alleged failure to exhaust state remedies will be deferred to the discussion of abstention below.

In Lehman v. Lycoming County Children's Services, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982), the Supreme Court sharply curtailed the availability of the writ of habeas corpus in cases where the petitioner is not a prisoner or is not subject to any restrictions imposed by a state criminal justice system. In Lehman, a mother sought federal habeas corpus relief from a state court decision affirming the termination of her parental rights to her three sons. Instead of relying on prudential considerations to affirm the lower court's dismissal of the petition, see Lehman, 458 U.S. at 520, 102 S.Ct. at 3242 (Blackmun, J., dissenting), the Court erected a jurisdictional bar to habeas relief in child custody cases: "We therefore hold that § 2254 does not confer federal-court jurisdiction" to consider collateral challenges to state-court judgments involuntarily terminating parental rights. Lehman, 458 U.S. at 516, 102 S.Ct. at 3239-40.

The Donkors have attempted to distinguish Lehman from the instant case by arguing that the former should be restricted to preclude habeas relief only in cases where parental rights have been terminated. The Donkors have not provided any rationale for this distinction, nor can one be found in the Lehman opinion. To the contrary, the Court specifically stated that children in foster homes, like Andrea and Crystal in this case, are "not in the `custody' of the State in the sense which that term has been used by this Court in determining the availability of the writ of habeas corpus." Id. at 510, 102 S.Ct. at 3237. While one might wish to adopt the dissent in Lehman, the Court's decision leaves little room for discretion on the part of a district court. The Donkors cannot rely on the writ of habeas corpus to relitigate in federal court the custody decision affecting their children.

II. Jurisdiction Under the Civil Rights Statutes

Although brought as a petition for a writ of habeas corpus, the Petition invokes federal jurisdiction pursuant to the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985. The Petition specifically alleges that the defendants under color of state law denied the...