Newton v. Burgin

• Decision Date: 22 August 1973
• Docket Number: No. C-C-72-17.,C-C-72-17.
• Citation: 363 F. Supp. 782
• Court: U.S. District Court — Western District of North Carolina
• Parties: Jeannittia B. NEWTON and Allie Haney Barrett, Plaintiffs, v. Lee BURGIN et al., Defendants.

363 F. Supp. 782

Jeannittia B. NEWTON and Allie Haney Barrett, Plaintiffs, v. Lee BURGIN et al., Defendants.

No. C-C-72-17.

United States District Court, W. D. North Carolina, Charlotte Division.

Argued June 22, 1973.

Decided August 22, 1973.

George S. Daly, Jr., of Casey & Daley, Charlotte, N. C. (Norman Monhait, second-year law student at Harvard), for plaintiffs.

R. S. Weathers, Asst. Atty. Gen., N. C. Dept. of Justice, Raleigh, N.C., for defendants.

Before CRAVEN, Circuit Judge, GORDON, Chief District Judge, and McMILLAN, District Judge.

OPINION OF THE COURT

GORDON, Chief District Judge.

At 12:30 A.M. on January 18, 1972, the plaintiff, Jeannittia B. Newton, was arrested in Mecklenburg County, North Carolina, and placed in custody for the unlawful possession of "a hypodermic syringe, and needle for the purpose of administering controlled substance. The said syringe, and needle was (sic) subject to the control and dominion of the defendant in that the said needle and syringe (sic) was in her hand, and she was sitting in the back seat, on the left side, of an automobile in which she was a passenger."

It is not clear to the Court who was driving the vehicle, but also in the car was Tallie Dewanna Newton, the two-year old daughter of the plaintiff Newton. A Charlotte, North Carolina, policeman took the child to an emergency receiving home regularly maintained by the Mecklenburg County Department of Social Services.

The defendant, Lee Burgin of the Mecklenburg County Department of Social Services, Child Welfare Division, was notified of the child's arrival at the receiving home. Burgin interviewed the plaintiff Newton the same day as the arrest and found that the plaintiff Newton was separated from the infant's father and the father's whereabouts was unknown. He also learned that the plaintiff Newton was living in a trailer with her mother, the plaintiff Allie Haney Barrett, in Gaston County. Following this interview the defendant Burgin executed a juvenile petition invoking the jurisdiction of the juvenile court as provided in North Carolina General Statute, section 281, chapter 7A, explaining that the mother was in jail and requesting the court to determine that the child was "in need of the care, protection or discipline of the State."

Acting on the defendant Burgin's petition, a Mecklenburg County District Court Judge entered an ex parte order commanding the Child Welfare Division of the Mecklenburg County Department of Social Services to assume custody of the child pending a hearing set for January 25, 1972. This order was made pursuant to North Carolina General Statute, section 284, chapter 7A, which is the statute that the plaintiffs have attacked as unconstitutional and which provides as follows:

"If it appears from a petition that a child is in danger, or subject to such serious neglect as may endanger his health or morals, or that the best interest of the child requires that the court assume immediate custody of the child prior to a hearing on the merits of the case, the judge may enter an order directing an officer or other authorized person to assume immediate custody of the child. Such an order shall constitute authority to assume physical custody of the child and to take the child to such place or person as is designated in the order. The court shall conduct a hearing on the merits at the earliest practicable time within five days after assuming custody, and if such a hearing is not held within five days, the child shall be released."

Around 7:00 o'clock P.M. on January 18, 1972, the plaintiff Newton posted bond and was released from the Mecklenburg County Jail. On January 19, 1972, the plaintiffs Newton and Barrett sought custody of the child from the Child Welfare Division but their request was refused.

On the same day the defendant Burgin requested the Gaston County Department of Social Services to investigate the home where the plaintiffs lived with the child. A report dated January 20, 1972, was prepared by a Gaston County social worker which in general reported that the trailer was found in a state of disorder, that it was dirty, and that it had little or no food present. This report was sharply contradicted by the plaintiff Barrett in an affidavit dated January 22, 1972, which stated that the trailer was in a state of disorder because they had just recently moved in and were still unpacking; she also stated that there was plenty of food in the refrigerator.

On January 21, 1972, the plaintiff Barrett applied for a hearing before the district court judge who had issued the initial order to request an ex parte, temporary custody order. The defendant Burgin was called and he tendered the Gaston County social worker's report to the court. The court declined to consider the report and refused to hear the plaintiff Barrett until the already scheduled hearing was held on January 25, 1972. However, the hearing was never held because the plaintiffs were able to temporarily restrain the defendants by order of the United States District Court. The federal court further ordered that the child be delivered to the custody of her mother and the proceedings of the Mecklenburg County District Court be stayed until a three-judge court could be empaneled to determine the constitutionality of section 284, chapter 7A of the North Carolina General Statutes.

DISCUSSION

Before reaching the merits of the case, the plaintiffs must first overcome the question of this Court's equitable jurisdiction in this matter. The defendants, relying on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973), strongly contend that this Court does not have equitable jurisdiction over this matter and the Court should abstain and give the state courts a chance to interpret the statute.

The Snepp decision sets out several reasons why the federal courts should be slow to interfere with state court proceedings. One such reason is the general rule of equity that equitable relief should be denied where there is an adequate remedy at law and the party will not suffer irreparable injury; this principal of law is combined with the concept of "federalism" or "sensitivity" to the legitimate activities of the States and forms the basis for the doctrine of abstention. The Court in Snepp applied the following test to the facts in that case: (1) Did the plaintiffs show an injury which could not be dissipated should these plaintiffs defend in the state civil proceeding, and (2) Is there an irreparable injury which is both great and immediate?¹

Under N.C.G.S. 7A-§ 284 a parent will be deprived of the custody of its child or children for at least five days and in the instant case seven days² before the parent can defend his or her right to custody in a state civil proceeding. This five-day separation is clearly an injury to the parent which occurs before he or she has a chance to defend his or her right to custody in a civil proceeding, and it is an injury which occurs regardless of the outcome of the civil proceeding. The defendants argue that the plaintiffs could have initiated a state habeas corpus petition, but this is not required in the rules laid down in the Snepp case since the plaintiff need only show a great and immediate, irreparable injury and that the injury cannot be dissipated in the defense of the state civil proceeding.

It is equally clear that the deprivation of custody prior to the civil proceeding is an irreparable injury which is both great and immediate. The Court finds therefore, that the plaintiffs in this case have shown an irreparable injury which is both great and immediate and that the injury will not be dissipated in the state proceedings. It follows that it would not be proper for the Court to abstain from deciding the case on its merits, and the Court therefore turns to the merits of the plaintiffs' arguments.

The plaintiffs' basic contention is that N.C.G.S. 7A-§ 284 is unconstitutional because it deprives parents of the custody of their child for a five-day period without due process of law as guaranteed by the Fourteenth Amendment. The plaintiffs are asking this Court to grant a declaratory judgment that the child's seizure was unconstitutional, a declaratory judgment that the "five-day" period is unconstitutional in that it deprives the plaintiffs of custody without a hearing, and a permanent injunction against enforcement of the statute in the future.

The plaintiffs base their argument on the premise that control and custody of a child by its parent is a constitutionally protected right. With this premise the Court will not take issue; indeed, the United States Supreme Court has spoken on the subject on many occasions. In Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-1213, 31 L.Ed.2d 551 (1972), the Court stated:

"The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed `essential,' Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), `basic civil rights of man,' Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1665 (1942), and `rights far more precious . . . than property rights,' May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953). `It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, 262 U.S. at 399, 43 S.Ct. at 626, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, 316 U.S. at 541, 62 S.Ct. at 1113, and the Ninth Amendment, Griswold v. Connecticut, 381 U. S.

...