Family Civil Liberties Union v. State

• Decision Date: 29 May 2019
• Docket Number: Civ. No. 18-2597 (KM)(JBC)
• Citation: 386 F.Supp.3d 411
• Parties: FAMILY CIVIL LIBERTIES UNION, Surender Malhan, for himself and as parent of E.M., and V.M., Elvin Serrano, for himself and as parent of L.S., Zia Shaikh for himself and as parent of M.S., S.S., and H.S., Plaintiffs, v. STATE of New Jersey, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

386 F.Supp.3d 411

FAMILY CIVIL LIBERTIES UNION, Surender Malhan, for himself and as parent of E.M., and V.M., Elvin Serrano, for himself and as parent of L.S., Zia Shaikh for himself and as parent of M.S., S.S., and H.S., Plaintiffs,

v.STATE of New Jersey, et al., Defendants.

Civ. No. 18-2597 (KM)(JBC)

United States District Court, D. New Jersey.

Signed May 29, 2019

Paul Alexander Clark, Clark Legal Services, Jersey City, NJ, for Plaintiffs.

Robert J. Mcguire, New Jersey Attorney General, Trenton, NJ, for Defendants Child, Gurbir S. Grewal, David C. Katz, Donald Kessler, Marcella Matos Wilson.

Michael J. Keating, Dughi & Hewit, P.C., Cranford, NJ, for Defendant Richard Federici.

Roshan Deven Shah, Brent Merrill Davis, Scarinci & Hollenbeck, LLC, Lyndhurst, NJ, for Defendant Soaring Heights Charter School.

KEVIN MCNULTY, U.S.D.J.:

The plaintiffs, Surender Malhan, Elvin Serrano, Zia Shaikh, and the Family Civil Liberties Union, seek relief under 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. The plaintiffs do not challenge particular rulings of the state family court. Rather, they assert that New Jersey's statutes, court rules, and case law do not provide sufficient constitutional protection of their custody rights in family court proceedings. Two of the plaintiffs have asserted the key claims here in prior actions, where they were denied in decisions upheld by the United States Court of Appeals for the Third Circuit.

Now before the Court are defendants' motions to dismiss the Third Amended Complaint ("Complaint").¹ For the reasons stated herein, those motions to dismiss are granted.

I. Summary of Allegations

Plaintiffs' Complaint alleges the following facts. For purposes of this motion to dismiss only, I must assume the truth of the well-pleaded, factual² allegations, although of course they have not yet been tested by any fact finder at this procedural stage. See Section II, infra .

a. Parties

The plaintiffs, Surender Malhan, Elvin Serrano, and Zia Shaikh, are New Jersey residents who have pending proceedings in New Jersey Superior Court, Family Division. (Comp ¶ 3). Each of these individual plaintiffs has lost custody in family court child-custody proceedings. (Comp ¶ 11).

Plaintiff Family Civil Liberties Union ("FCLU") is a § 501c(4) organization incorporated in New Jersey. (Comp ¶¶ 4, 5). FCLU has approximately 7,500 members across the United States. Nearly all of its 750 New Jersey members are or have been involved in New Jersey family court custody proceedings. (Comp ¶¶ 6, 7).

Defendant Gurbir Grewal is the Attorney General of New Jersey. He and ten fictitious "John Doe" defendants are named in their official capacities only, as persons "presumably ... tasked with administ[ering] and enforcing New Jersey law." (Comp ¶¶ 14, 22).

Defendant Judge David Katz is the presiding judge of the family division of the Essex County Superior Court who has at times presided over Malhan's family court dispute. (Comp ¶¶ 15, 37). Defendant Judge Donald Kessler is a judge of the Essex County Superior Court who has at times presided over Malhan's family court dispute. (Comp ¶ 17). Judge Marcella Matos Wilson is a judge of the family division of the Essex County Superior Court who has presided over Serrano's family court dispute. (Comp ¶ 18).

Defendant Richard Federici was hired by the State of New Jersey to perform counseling services for plaintiff Serrano's child. (Comp ¶ 19). Defendant Chester Sigafoos was hired by the State of New Jersey to do an evaluation of plaintiff Malhan and his family. (Comp ¶ 20).

Defendant Soaring Heights Charter School is a New Jersey charter school located in Hudson County which Malhan's children attended. (Comp ¶ 21).

b. Allegations regarding Malhan case

i. Malhan family court proceedings

Malhan's allegations grow out of a bitter divorce from Alina Myronova and a custody dispute over the couple's two children that began in 2011. (Comp ¶¶ 23–27). Over the course of those family court proceedings Malhan and Myronova made accusations against each other, including that Malhan was mentally unstable, that Myronova made several false representations, and that each had engaged in miscellaneous criminal conduct. (Comp ¶¶ 28–35). In early 2017, Hudson County prosecutors indicted Malhan based on accusations made by Myronova, but that indictment was later dismissed. (Comp at pp. 9–12).³

In 2017, Myronova filed a motion for an order to show cause in which she requested and received exclusive custody of their two children. (Comp ¶ 27). In making the custody determination, which was later relaxed, Judge Katz "appeared to" have relied upon information from the New Jersey Division of Child Protection and Permanency ("DCPP") that was provided to him ex parte and not entered into the record (hereinafter, the "DCPP Interim Report"). (Comp at pp. 14–15) Plaintiffs take issue with the manner in which the DCPP communicated this information to the family court. (Comp ¶¶ 42–47). According to the plaintiffs, the family court "appeared to entirely disregard all of the counter evidence presented by Malhan" and "appeared to be relying on the [DCPP Interim Report]" in making its custody determination. (Comp ¶¶ 44, 45).

Thereafter, in September 2017, Malhan filed his own motion for an order to show cause in an attempt to regain custody of his children. (Comp ¶¶ 47–53). In that motion Malhan complained that Myronova's boyfriend, Jeff Rothstein, was spending time alone with the children in violation of a prior family court order. (Id. ). The family court has not taken any action to date in response to the allegation that Myronova violated its order. (Comp ¶ 58).

Malhan wanted the family court to hear evidence at an October 2017 hearing from a psychologist whom he had hired, Dr. Lidia Abrams, but the court denied that request. (Comp ¶¶ 54–62, 136–38, 149). During the October 2017 hearing, the family court also denied Malhan's renewed request to regain custody of his children. (Comp ¶¶ 63–67). Judge Katz based his decision to deny Malhan custody in part on the DCPP Interim Report, which articulated "child welfare concerns." (Comp ¶ 64). Judge Katz declined to disclose to the parties "what the children may or may not have said" to DCPP agents who created the Interim Report. (Id. ). Malhan objects that this DCPP Interim Report amounts to "secret evidence" that was not admitted into the record, and therefore not subject to "meaningful opposition." (Comp ¶¶ 65–66).

Later in October 2017, the family court did permit the parties to review the DCPP Interim Report at the courthouse but did not permit them to keep a copy. (Comp ¶¶ 71–72). In describing the DCPP Interim Report, the family court noted that it was "relevant to ... the emergent suspension of [Malhan's] visitation [privileges with his children]", and that it "raises some significant concerns about some interactions, and it quotes the children." (Comp ¶ 73).

Malhan's counsel took issue with the admissibility of the DCPP Interim Report. (Comp ¶ 76). Nonetheless, the family court determined that it would be "shunning [its] responsibilities if [it] turned a blind eye to" the DCPP Interim Report. (Comp ¶ 77). Therefore, the family court reasoned that until it received "psychological evaluations that contradict or explain or create some type of factual issue [with regard to the DCPP Interim Report,] DCPP's recommendations and intimations need to be respected." (Id. ). On this basis, the family court suspended Malhan's custody privileges and only allowed him limited, supervised visitations with the children. (Comp ¶¶ 77, 115).

At this point Malhan attempted to submit the psychological report of his retained psychologist, Dr. Abrams, which purportedly gave Malhan "a clean bill of health." (Comp ¶ 80). However, the family court would not consider Dr. Abrams's report until the DCPP finished its full assessment. From the Complaint, it can be inferred that the DCPP Interim Report, as the name implies, was an initial appraisal that would be followed by a more complete DCPP assessment. (Comp ¶ 81). The family court noted that without the full DCPP assessment, it was "not inclined to ignore the concerns raised by DCPP," which—although this is not directly stated in the Complaint—appear to be based on suspicions that Malhan may have had suicidal ideations. (Id. ; Comp ¶ 120).

In November 2017, the DCPP completed its full assessment and submitted its findings to the family court. (Comp ¶ 102). As part of its assessment, the DCPP hired Dr. Sigafoos to conduct an evaluation of Malhan. This evaluation included an approximately hour-long interview in October 2017 and resulted in a report by Dr. Sigafoos (the "Sigafoos Report"). (Comp ¶¶ 107, 110). During a November 30, 2017 hearing, the family court announced that the previous intimations that Malhan was suicidal were unfounded. (Comp ¶¶ 116, 120). Nonetheless, said the court, the Sigafoos Report "raised some collateral concerns" about Malhan and his "parenting ability." (Comp ¶¶ 118, 120). The family court then allowed the parties to review the Sigafoos Report. (Comp ¶¶ 117–20). Malhan challenged the admissibility of that report on a variety of grounds. (Id. ).

During this November 2017 family court hearing, Malhan again requested custody of his children. (Comp ¶ 121). The family court did not formally admit the Sigafoos Report into evidence but referred to it in deciding not to grant complete custody to Malhan. (Comp ¶ 122). However, in an order dated November 30, 2017 (the "November 2017 Order"), Judge Katz did lift some of the prior restrictions on Malhan's custody rights and allowed him to have unsupervised daytime visits with the children on the weekends for the first two weeks (so as to transition the children back into increased parenting time with Malhan), to be followed by three overnight visits per week from Tuesday through Friday. (Comp ¶¶ 123–25).

Despite being granted limited custody rights in the November 2017 Order,...