HOOTSTEIN v. Collins

Decision Date14 January 2010
Docket NumberNo. 08-CV-30113-MAP.,08-CV-30113-MAP.
Citation679 F. Supp.2d 169
PartiesMichael HOOTSTEIN, et al., Plaintiffs v. Joseph COLLINS, et al., Defendants.
CourtU.S. District Court — District of Massachusetts

Mary-Elizabeth S. Fox, Law Office of Mare S. Fox, Shutesbury, MA, for Plaintiffs.

William P. O'Neill, Office of the Attorney General, Springfield, MA, for Defendants.


PONSOR, District Judge.


In this case, Plaintiffs Michael Hootstein, Kathlyn Stein, and their minor grandchild, M.R. (collectively, "Plaintiffs"), filed suit against a number of current and former employees of the Massachusetts Department of Children and Families ("DCF"),1 alleging, inter alia, that Defendants violated Plaintiffs' constitutional rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution, deprived them of civil rights guaranteed by Massachusetts law, and failed to comply with Mass. Gen. Laws ch. 66A and numerous state regulations. All of these allegations relate to abuses that Plaintiffs claim they suffered during the course of child custody proceedings in both the Juvenile, and the Family and Probate, state courts from January 2004 to September 2006.

Plaintiffs originally filed suit against five current or former DCF employees in their individual capacities, seeking monetary damages. After receiving permission from this court to amend their complaint, on May 5, 2009, Plaintiffs filed an amended complaint to add a claim for "injunctive and equity relief" against former DCF Commissioner, Lewis "Harry" Spence ("Defendant Spence"), in his official capacity. On November 19, 2009, this court granted Defendant Spence's Motion to Dismiss, finding that the claim against him was precluded by the Eleventh Amendment. 670 F.Supp.2d 110 (D.Mass.2009).

In the motions currently before this court, the remaining Defendants—Rome, Collins, Molina, Kipp, and Greenberg—all move for summary judgment. All Defendants assert that Plaintiffs have not established sufficient facts to maintain their federal constitutional claims.2 Additionally, Defendant Rome argues that he is entitled to absolute immunity, and Defendants Collins, Molina, Kipp, and Greenberg contend they are protected by the doctrine of qualified immunity. Finally, Defendants argue that if this court were to find that they are entitled to summary judgment on Plaintiffs' federal claims, then this court should exercise its discretion and dismiss Plaintiffs' state law claims for lack of jurisdiction.

For the reasons set out below, Defendants' Motions for Summary Judgment will be allowed.


Defendants are sued in their individual capacities as employees of the Massachusetts DCF: Defendant Rome is an attorney for DCF; Defendant Collins is the Greenfield Regional Director; Defendant Greenberg is an Area Program Manager who has been employed by DCF for approximately twenty-two years in various capacities; Defendant Kipp is a supervisor for DCF in the Greenfield Regional Office; and Defendant Molina is a social worker for DCF, also located in the Greenfield Regional Office.

Plaintiffs Michael Hootstein and Kathlyn Stein ("Plaintiff Grandparents") are the maternal grandparents of M.R. (the "grandson"), a minor child who first came to DCF's attention when, in January of 2004, a mandated reporter filed a complaint with DCF pursuant to Mass. Gen. Laws ch. 119, § 51A, alleging that the grandson's parents were neglecting him. After an investigation under Mass. Gen. Laws ch. 119, § 51B, on January 21, 2004, DCF determined that it would support the allegations of parental neglect of the grandson because he had been present during a domestic dispute between his parents. As a result of the decision to support those neglect allegations, DCF began an assessment of the grandson's parents in order to provide social services to them. On January 21, 2004, Defendant Molina was assigned as Case Manager and Defendant Kipp was assigned as Supervisor for a case involving the grandson, his mother (Plaintiff Michael Hootstein's daughter), and the grandson's father.

Plaintiff Grandparents were actively involved in this process from the beginning, informing DCF that their daughter suffered from an untreated mental health disability that affected her ability to take care of their grandson. On several occasions, Plaintiff Grandparents contacted DCF or filed formal complaints, alleging that their grandson was being emotionally abused by his mother and also by the DCF social worker assigned to the investigation.

Eventually, the grandson began staying with Plaintiff Grandparents three or four nights a week, and Plaintiff Grandparents sought and obtained written consent from the grandson's parents to seek permanent co-guardianship. Plaintiffs assert that they informed the DCF staff involved in their grandson's case about this living arrangement. On or about June 28, 2004, Plaintiff Grandparents formally petitioned the Franklin County Family and Probate Court for approval of this "co-guardianship." After their daughter's mental condition allegedly worsened, Plaintiff Grandparents also filed an Emergency Motion for Temporary Guardianship of a Minor Child with the same Franklin County Family and Probate Court on or about October 27, 2004.

Two days later, on October 29, 2004, Defendant Molina filed a Care and Protection petition in Franklin County Juvenile Court pursuant to Mass. Gen. Laws ch. 119, § 24 because of similar concerns about the deteriorating mental condition of the grandson's mother. At the time the Care and Protection Petition was filed in Greenfield Juvenile Court, the grandson was officially residing with his mother in Shutesbury, Massachusetts, and was also in her legal custody. As required under Mass. Gen. Laws ch. 199, § 24, DCF notified the grandson's parents—who were the grandson's legal custodians at the time—of the Care and Protection Petition.

Plaintiff Grandparents assert that they should have been notified of this Juvenile Court proceeding, given that their grandson was staying with them during part of the week and because they had a pending Temporary Guardianship Petition in the Franklin County Probate Court. Additionally, Plaintiffs allege that DCF prevented both the Grandparents and the court-appointed Guardian Ad Litem who was representing the grandson in the Grandparents' Probate Court guardianship proceeding from participating in the initial hearing on DCF's Care and Protection Petition in Juvenile Court, despite their desire to do so.

Following the hearing on the Care and Protection Hearing, on November 1, 2004, the Franklin County Juvenile Court gave legal custody of the grandson to DCF. The physical custody of the grandson remained with his mother at that time. This decision was affirmed at the so-called "seventy-two-hour" hearing that took place on November 4, 2004. Plaintiff Grandparents contend that, prior to the start of this proceeding, Defendants—via DCF counsel —threatened them (and the attorney that was representing them at the time), saying that they would never see their grandson again if they intervened in the Care and Protection Petition proceedings.

In light of the ruling on the Care and Protection Petition filed by DCF, the Franklin County Family and Probate Court stayed the proceedings on Plaintiff Grandparents' Emergency Temporary Guardianship Petition while the grandson was in DCF's legal custody. The Probate Court indicated that it would mark Plaintiff Grandparents' emergency petition for hearing once DCF's legal custody ended.

On November 17, 2004, after the grandson's mother was evicted from Jesse's House (a shelter where she moved following the commencement of the Care and Protection Petition proceedings), due to her failure to follow house rules, DCF assumed both legal and physical custody of the grandson. From November 17, 2004 to December 8, 2004, the grandson was placed in a DCF-approved foster home because of his mother's unstable living situation. The grandson was subsequently placed temporarily with Liz and David Hootstein, his maternal aunt and uncle, who live in the eastern part of Massachusetts. Plaintiff Grandparents allege that before this new placement with the grandson's family members occurred, Defendant Kipp called the Grandparents and informed them that DCF would not approve this placement with the aunt and uncle unless the Grandparents withdrew a Registration of Interest ("ROI") that they had filed in mid-November 2004 to become the grandson's foster/kinship placement under the procedures established in 110 Mass. Code Regs. 7.103 and 110 Mass.Code Regs. 7.108. According to Plaintiff Grandparents, they acceded to Defendant Kipp's demand because they feared that their grandson was being emotionally and physically abused in the foster home and preferred that he be placed with relatives.

Plaintiff Grandparents also allege that DCF initially refused to grant them any visitation rights with their grandson after it filed the Care and Protection Petition. Despite their objections to this policy and despite the fact that they were represented by able counsel, Plaintiff Grandparents did not appeal DCF's no-visitation decision in either the state courts or through DCF's fair hearing process outlined in Mass. Gen. Laws ch. 119, § 23.

In December of 2004, however, DCF decided that Plaintiff Grandparents could have supervised visitation with the grandson once a month for two hours at a time. Subsequently, in March of that same year, the Grandparents were permitted to have unsupervised contact with their grandson. According to Plaintiff Grandparents, following DCF's March decision regarding visitation, their grandson also began staying with them two to three nights a week. Some time early in April 2005, Plaintiff Grandparents, through their counsel, filed a motion to intervene in DCF's Care and Protection Petition...

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2 cases
  • Denicola v. Potter
    • United States
    • U.S. District Court — District of Massachusetts
    • June 30, 2020
    ...of the government, and the right of access to the courts is most certainly protected by the First Amendment." Hootstein v. Collins, 679 F. Supp. 2d 169, 187 (D. Mass. 2010) (citing Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972)). "Claims of retaliation for the exerci......
  • Rafferty v. Mass. Dep't of Children
    • United States
    • U.S. District Court — District of Massachusetts
    • June 30, 2011
    ...means of redress[,] . . . . both where the official's action is negligent, and where it is deliberate."); see Hootstein v. Collins, 679 F. Supp. 2d 169, 181 (D. Mass. 2010). Here, a number of procedural avenues were available to plaintiff, including an appeal through the state courts, see M......

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