Reinhardt v. COM. OF MASS. DEPT. OF SOCIAL SERV.

• Citation: 715 F. Supp. 1253
• Decision Date: 28 June 1989
• Docket Number: No. 89 Civ. 2198 (GLG).,89 Civ. 2198 (GLG).
• Parties: Mark REINHARDT, individually and on behalf of Marin Reinhardt, a minor, Plaintiff, v. The COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF SOCIAL SERVICES; Nancy Lee Torrey, Scott Griffith, "John Doe", and "Jane Doe", in their individual capacity and in their official capacity as employees of the Commonwealth of Massachusetts Executive Office of Human Services Department of Social Services, Ann Joudrey, William Updegraff and Honorable George Bernhard, Defendants.
• Court: U.S. District Court — Southern District of New York

715 F. Supp. 1253

Mark REINHARDT, individually and on behalf of Marin Reinhardt, a minor, Plaintiff, v. The COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF SOCIAL SERVICES; Nancy Lee Torrey, Scott Griffith, "John Doe", and "Jane Doe", in their individual capacity and in their official capacity as employees of the Commonwealth of Massachusetts Executive Office of Human Services Department of Social Services, Ann Joudrey, William Updegraff and Honorable George Bernhard, Defendants.

No. 89 Civ. 2198 (GLG).

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

June 28, 1989.

Maher & Brofman, Carmel, N.Y. (Kenneth M. Bernstein, of counsel), for plaintiff.

Atty. Gen. of the Com. of Mass., Boston, Mass. (James M. Shannon and Gary J. Mena, of counsel), for defendants the Com. of Mass. Dept. of Social Services, Nancy Lee Torrey, Scott Griffith, "John Doe", and "Jane Doe".

Guernsey, Butts & Walsh, Poughkeepsie, N.Y. (Roland Butts, of counsel), for defendant Ann Joudrey.

William Updegraff, Poughkeepsie, N.Y., pro se.

Atty. Gen. of the State of N.Y., New York City (Robert Abrams and Ronald Turbin, of counsel), for defendant George Bernhard.

OPINION

GOETTEL, District Judge:

This civil rights action is part of a complex of procedural maneuvers that has been evolving since September of 1988 in connection with a divorce of the marriage of the plaintiff and defendant Joudrey. Pursuant to a judgment dated January 19, 1988 and filed in Dutchess County, New York, Joudrey was granted custody of the couple's infant daughter Marin Reinhardt, age 6, while the plaintiff was given specific rights of visitation. The divorce judgment incorporated a separation agreement which stated that neither the plaintiff nor Joudrey were authorized to remove Marin from the State of New York without the other's consent. The plaintiff alleges that on or about September 5, 1988, defendant Joudrey removed Marin from New York without the plaintiff's consent and without providing for future visitation by the plaintiff.

Consequently, the plaintiff filed a petition, dated September 15, 1988, in the Family Court of the State of New York, for custody of Marin. The plaintiff's custody proceeding was assigned to defendant Judge Bernhard, who directed that an investigation of involved parties be conducted by the Dutchess County Department of Probation. On January 6, 1989, during an interview conducted by the Dutchess County Department of Probation as part of the investigation, Marin stated that the plaintiff touched her genitals when he bathed her.¹ Fearing possible sexual abuse, Judge Bernhard referred the matter to the Child Protective Services of the Dutchess County Department of Social Services for additional investigation. At the same time, however, Judge Bernhard granted the plaintiff bi-weekly visitation with Marin. On or about January 27, 1989, the plaintiff had visitation with Marin as directed by the court. Prior to the next scheduled visitation, defendant Massachusetts Department of Social Services, by its agents, directed Joudrey not to comply with Judge Bernhard's visitation order and threatened Joudrey with a neglect proceeding and removal of the child if she complied with the visitation schedule. On February 8, 1989, Judge Bernhard amended the visitation schedule, allowing the plaintiff to visit with his daughter every third weekend. On the advice of the Massachusetts Department of Social Services, Joudrey failed to comply with this visitation schedule.

On or about February 24, 1989, in response to a petition brought by the plaintiff in Family Court, Judge Bernhard directed that Joudrey deliver her daughter for visitation with the plaintiff. On March 2, 1989, however, upon the petition of defendant Joudrey, Judge Bernhard signed an ex parte order to show cause suspending visitation pending further determination by the court. Also on that date, Judge Bernhard appointed defendant William Updegraff as Law Guardian for Marin. On March 9, 1989, the plaintiff appeared before Judge Bernhard in opposition to defendant Joudrey's petition. Judge Bernhard stated at the hearing that he would permit supervised visitation by the plaintiff and examination of the child by a Child Sex Abuse Syndrome validator, conditioned, however, on approval by the State of Massachusetts. Judge Bernhard then adjourned the matter until May 19, 1989 for hearing and determination of the plaintiff's custody petition and resolution of visitation. Presumably because Massachusetts would not consent to visitation under the circumstances proposed by Judge Bernhard, no order permitting visitation was signed and the ex parte suspension of visitation remains in effect.² On May 19, 1989, the parties commenced a trial on the custody petition.³ After hearing the plaintiff's first witness, the trial was adjourned to July 3, 1989.

By summons and complaint dated March 29, 1989, the plaintiff instituted this proceeding pursuant to 42 U.S.C. § 1983 alleging that the suspension of visitation without a hearing violated his and his daughter's federal constitutional rights embodied in the fourth, fifth, ninth and fourteenth amendments.⁴ The plaintiff seeks an order vacating Judge Bernhard's order of March 2, 1989 suspending visitation, prohibiting Judge Bernhard from modifying the divorce decree and custody order of the Supreme Court of the State of New York, and requiring the Family Court either to issue an order compelling the presence of Marin before a qualified Child Sex Abuse Syndrome validator, or, in the alternative, to hold a hearing where this issue could be litigated. The plaintiff additionally asks that this court issue an order of mandamus directing the Family Court to execute an order requiring defendant Joudrey to show cause why she should not be held in contempt. Finally the plaintiff asks that an order be issued by the Family Court removing defendant William Updegraff as Legal Guardian for Marin, and appointing another attorney. The plaintiff also seeks $500,000 in actual damages and $250,000 in punitive damages from all the defendants, jointly and severally. All of the defendants have moved to dismiss the complaint.

The common denominator of the various defendants' motions to dismiss is the Younger abstention doctrine. Based on notions of comity and federalism, this doctrine counsels a federal court to abstain from exercising its jurisdiction whenever the federal claims raised by the plaintiff could be asserted in ongoing state judicial proceedings that concern important state interests. Younger v. Harris, 401 U.S. 37, 49, 91 S.Ct. 746, 753, 27 L.Ed.2d 669 (1971). Although Younger was decided in response to ongoing state criminal proceedings, the Court has extended the doctrine to civil proceedings when important state interests are at stake and the plaintiff has an opportunity to raise his federal claims in an ongoing state proceeding. Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619, 627-29, 106 S.Ct. 2718, 2723-24, 91 L.Ed.2d 512 (1986). The Second Circuit has established a three-part test, emanating from Dayton Christian Schools, for determining when Younger abstention should be applied. The court must determine "(1) whether there is an ongoing state proceeding; (2) whether an important state interest is involved; and (3) whether the federal plaintiff has an adequate opportunity for judicial review of his constitutional claims during or after the proceeding." Christ the King Regional High School v. Culvert, 815 F.2d 219, 224 (2d Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 102, 98 L.Ed.2d 63 (1987).

As to the first requirement, the custody and visitation proceeding brought in New York Family Court by the plaintiff is currently pending. A trial on the merits began on May 19, 1989 and will be continued on July 3, 1989. Moreover, "it is settled that for purposes of Younger abstention that sic a proceeding is considered pending until all appellate court remedies have been exhausted." Simmonds v. Deutsch, No. 88-3881 slip op., 1989 WL 32835 (E.D. N.Y. March 27, 1989). Hence, an ongoing state proceeding exists. See University Club v. City of New York, 842 F.2d 37, 40 (2d Cir.1988); Christ the King Regional High School v. Culvert, 815 F.2d 219, 224 (2d Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 102, 98 L.Ed.2d 63 (1987). Moreover, there can be no doubt that a custody dispute that involves allegations of sexual abuse raises important state interests. Questions of family relations, especially when issues of custody and abuse are involved, are traditionally an area of state concern. Moore v. Sims, 442 U.S. 415, 435, 99 S.Ct. 2371, 2383, 60 L.Ed.2d 994 (1979).

The more difficult aspect of this motion is whether the plaintiff has an adequate opportunity to raise his federal claims in the underlying custody proceeding. The plaintiff argues that, although the custody trial will ultimately make a determination of permanent custody and visitation rights, he has not, and will not, be able to contest the interim order suspending visitation. The defendants argue both that the custody trial gives the plaintiff sufficient opportunity to be heard and that the plaintiff chose to forego judicial remedies in the state court system.

There is truth to the plaintiff's argument that the custody trial cannot afford him adequate relief because the issue of interim visitation will be mooted by a determination of permanent custody. This argument, however, ignores the alternative remedies available to an aggrieved state-court litigant. Initially, we question whether the plaintiff could have taken an appeal to the appellate division from the March 2, 1989 ex parte order suspending visitation. An appeal as of right may only be taken from a final order of disposition. N.Y.Fam. Ct.Act § 1112. Judge Bernhard's order was clearly an intermediate order to be modified after future proceedings by the court. Such an appeal can only be taken in the discretion of the appropriate appellate...