Jane Doe v. Seth Staples

2) The Supreme rejected Court has the HORTON, District Judge. proposition wrong may that a be done Doe, the appellant in this class ac- if it can be undone. tion, challenges policies practices the of 3) There is psychological evidence that defendant, County Hamilton Welfare removal summary of a child from Department (HCWD), Cincinnati, Ohio, to the natural a threat devel- which permit-children in the temporary le- opment of child. gal custody of HCWD to be summarily re- physical moved custody from of their ruling, recognized In the court so natural without parents prior written notice in the welfare as HCWD’s interest child’s or an opportunity hearing. Further, for a child. For custodian of the temporary legal appellant charges there no legally reason, were en- that the court stated HCWD child, limiting forceable standards in HCWD’s summarily discretion could remove a of employees deciding HCWD the natural temporary legal custody, under from children, what necessary protect circumstances these the child commit- if it is state, psycho- ted to the legal custody physical, from serious and imminent could However, logical removed harm. if physically custody from or emotional parents. the court summary necessary, Jane Doe removal argues notice to the failure to notice said HCWD' must deliver written and a and must hearing and the absence of time of removal legal sufficient at the * Horton, The Honorable Odell custody dependent, neglect- United States Dis- HCWD as Judge, Tennessee, unruly trict Western ed or District of sit- children and who have been re- ting by designation. united physical custody and returned to the parents. their natural 1. The certified class consists families with temporarily children who have been committed period May within reasonable was born on On Doe who hold stat- ruling by temporarily its Jane Doe was April The court finalized time. process requires: committed ing that due Ann. 2151.-3 to Ohio Rev.Code pursuant notice This was necessitated commitment (at the time removal the child Re in the Ohio incarceration exigent circum- removal where in Upon her release formatory Women. thereafter) promptly exist or stances n awarded Mary December of Doe was removal; for the stating the reasons of How custody daughter. her physical opportu- a full plaintiffs 2) The ever, temporary legal custody of the child witness- present to hearing at the nity all times rele during remained with HCWD behalf; and and evidence on es to this case. vant Jane a retained with the 3) may have with her natural mother continued plaintiffs The at the attorney hearing. acquiescence July of HCWD until removed when an HCWD social worker However, the court reasoned since custody Mary Doe from the of physical review of judicial hearing the removal care placed Doe and her in a local shelter law, available under Ohio Ohio Rev.Code undisputed It is that no written facility. 2506.01, Ann. 2151.359and of procedures §§ given Mary kind to any notice of was ever justified. a more formal nature could not be removal of her regarding summary Doe declined specify categorical The court to natural child. There was no of necessary standards to determine when re- subsequent summary to the kind appropriate. The court moval stated The social testified before removal. worker only necessary it is satisfy that removal court supplied the district that information of general purpose Chapter 2151 of the Ohio telephone by pro three individuals over Revised Code. summary the basis for the removal. vided complaining parties The identities satisfied plaintiffs apparently The were rec Mary not disclosed Doe. The were opin- with the district court’s well-reasoned policy that it official ord reflects is the policies to the extent held the ion per not to disclose the identities summary HCWD permit of HCWD which practices mis complain who it about from the sons removal of committed children the con conduct. Nor will HCWD disclose their natural physical information its files which contain clause of tents of be in violation the due on the removal decision. bearing therefore the fourteenth amendment and However, unconstitutional. respect applicable of an With issue a review of appealed seeking to this Court removal, governing standard the district points: three ruling the district court’s on specific ruled that no standard is con- removal 1) specificity The lack of in the mandated, the stan- stitutionally only that standard; satisfy gen- used HCWD must dard 2151 of the Ohio purpose Chapter eral 2) The content of the notice HCWD portion Revised Code. relevant give parents; to affected purpose Chapter 2151 statement Section safe- procedural limitations on reads: 2151.01 pre-removal guards which attend The sections in Chapter 2151 of the hearing. Code, Revised with the exception of those in this dispute. providing The facts case are not in sections prose- for the criminal adults, Doe is the of Jane natural mother cution liberally shall be inter- appendix. text of 2. See full

preted following purposes: construed so as to effectuate To paraphrase, ^[295] at 297 uncertainty [69 L.Ed. in this statute 589] enough

is not for it to be unconstitution- rather, ally vague; it must be substan- tially incomprehensible. foregoing purposes, achieve the (C) To family environ- possible, whenever 644 F.2d at 1033. Whether a statute is par- child from its ment, separating unconstitutionally vague must be assessed necessary for his welfare when only ents in the particular context of the conduct to (em- safety; public interests of or in the it is which being applied. United States v. added). phasis National Dairy Products Corp., 83 S.Ct. L.Ed.2d 561 Under standard, urge that this broad Appellants particular circumstances involved in this generally referring to the welfare of the case, the Court does not find the Ohio stat safety, and interest fails ute is “substantially incomprehensible,” requirements of satisfy process due of Exxon, supra, 1033, at or so indefinite that law implement in that HCWD’s failure to “men of common intelligence must neces enforceable standards leaves HCWD with guess sarily at meaning its and differ as to unfettered discretion in which deciding application.” its Connally v. General Con committed child is to be removed from Co., 385, struction 391, 46 269 126, U.S. S.Ct. physical custody parent. Ap- of the natural 127, 70 (1926). L.Ed. 322 See also Hynes v. pellants argue the decision to a remove Mayor and Council of Borough Oradell, of , child necessarily becomes an sub- entirely 610, 425 620, U.S. 1755, 96 1760, S.Ct. 48 jective may which vary decision from social (1976). L.Ed.2d 243 worker to social worker and is not on based objective criteria. Appellants assert this The other of appellants concerns involve statute, inherent subjectivity, per- in the content of the notice that HCWD must per- mits the decision to be influenced give to affected and the limitations temperament, sonality, experience procedural on safeguards which attend the training of individual worker. other In pre-removal hearing. words, appellants’ it is contention that a family’s opportunity physical to retain cus- process applies only Procedural due tody depends of its child more on who the constitutionally pro of deprivation to the assigned social worker is rather than a fam- liberty or Board property tected interests. ily’s ability care for the child. Roth, 564, 569, Regents v. 408 92 of U.S. 2701, 2705, (1972). 33 L.Ed.2d 548 S.Ct. wel that Ohio’s This Court finds of a deprivation constitutionally Once safety fare of the child/interests has protected liberty property interest process due sufficiently satisfies standard demonstrated, a court determine must con statute is not When a requirements. adequate a was afforded plaintiff whether first conduct or criminal cerned with is deter process protection. due “Once it considerations, must the court amendment question process applies, that due mined a evaluating in claim lenient fairly Morrissey v. process remains what due.” Busbee, 644 v. Corp. Exxon vagueness. Brewer, 2593, 92 408 S.Ct. U.S. denied, 454 (5th Cir.1981), cert. F.2d 1030 (1972). 2600, 33 L.Ed.2d 484 430, 239 70 L.Ed.2d 340, 102 S.Ct. U.S. stated: the court in Exxon (1981). As out, pointed As the district proc- liberty of due is axiomatic that deprivation constitute [T]o choice in personal as and indefinite interest the freedom ess, vague be “so it must the state all.” life in which family standard at matters be no rule or really to A.B. Small Co., 267 U.S. ^[233] at 239, 45 cannot interfere. Smith v. Organization

989 816, 2094, extent Families, Mary 97 Doe’s liberty 431 U.S. S.Ct. interest Foster Illinois, the procedural process 405 (1977); Stanley necessary 14 to protect 53 L.Ed.2d 1208, 645, L.Ed.2d such interest. Lopez, 565, 92 31 551 Goss v. 419 U.S. S.Ct. U.S. in- 95 42 liberty family (1975); interest S.Ct. L.Ed.2d 725 This Board Regents, or of supra. Mary labeled an essential tegrity has been rights were Depart- Lassiter v. limited when she was fundamental interest. incarcer- ated. The County, granted of Durham State of Ohio Mary ment of Service Doe Social Carolina, opportunity 101 remove this limit on her North 452 U.S. S.Ct. liberty interest when it allowed her to 640 re- 68 L.Ed.2d gain physical custody of her child. This States of the United Supreme Court potential Mary Doe regain both re- only stated Smith physical custody of her natural child is appropriate is one process by due quired not unlike the liberty conditional of a parol- at 97 Smith, supra ease. ee “properly dependent on the observance has also indicated Court 2111. The at S.Ct. of special parole restrictions.” Morrissey, concretely defined: cannot be process due at U.S. at 2599. Continued flexible and calls such physical custody of the minor child was [D]ue particular as the protections subject procedural temporary legal custody of situation demands. HCWD. The child could be removed from “[CJonsideration may require procedures physical what custody of Mary Doe if the of circumstances given set short, under circumstances warranted. In begin with a determination partner was a care, with Doe in the func- government nature of the precise nurturing and of Jane Doe. See private Smith, inter- 845, as well as supra, tion involved 431 at U.S. 97 at S.Ct. government by affected est that 2110.

action.” Considering liberty the conditional inter- Brewer, 471, 481, Mary continuing 408 92 est of Doe and the interest v. U.S. Morrissey (1972), insuring 484 of the the safety 33 L.Ed.2d State Ohio S.Ct. child, Doe, being Restaurant Workers of the after reunited & quoting Cafeteria 895, mother, 886, 81 with her natural the district court 367 McElroy, v. U.S. Union with required appellant 6 L.Ed.2d 1230 the state S.Ct. following procedural safeguards: tempo- case, granted was In this 1) (appellants) given no- plaintiffs The minor Mary Doe’s rary legal of the child tice to the removal As Doe was incarcerated. Mary when (at the time of the removal where court, temporary by the district stated prompt- exist or exigent circumstances subject to re- was custody of HCWD legal thereafter) stating the reasons for ly and re- privileges parental rights, sidual removal; The parent. natural sponsibilities child, Jane the minor state’s 2) plaintiffs (appellants) The at the end of Doe, with her at opportunity hearing full began incarceration period of parent’s present witnesses and evidence on the emotional reestablishing process behalf; and child. Neverthe- attachment (appellants) may have temporary maintained less, the state still hearing. at the attorney retained Doe. custody of Jane legal assert the district court Appellants was this case court stated The district have HCWD to disclose required should analogy That Morrissey. analogous most persons who com- and them the identities the nature to ascertain is appropriate 990 quired to parental about miscon- disclose the

plained identity persons who However, complain does not re- process due about duct. misconduct. adversary quire a formal and full-blown judicial Since review of the removal every requires case. Due hearing process decision is available law, under Ohio provided that an individual be with a hear- district court reasoned that procedures of a to the nature of the case. ing appropriate more formal nature justified. could not be Connecticut, 371, 91 Boddie v. S.Ct. This Court disagrees with this conclusion of (1971). In that case the 28 L.Ed.2d 113 the district court and finds that two addi Supremé Court stated: procedures tional are required in cases such requisites formality procedural as this in order to satisfy procedur minimal upon vary, depending can for the al due process requirements. the interests involved importance of First, due necessitates that subsequent pro- the nature of the hearing required by the district court be ceedings. conducted agen neutral and detached at 91 at S.Ct. Boddie cy official. This hearing official need not judicial be a simple officer. The require Thus, process requires due that the Court ment is that the hearing be conducted an respective assess the interests of HCWD official other than the one initially handling and appellants determining whether a the case. Morrissey, 408 at 92 U.S. particular procedural requisite, such as the Second, S.Ct. at 2604. requires accusers, ability to confront one’s is neces- the hearing officer conducting the re sary. regard, In this the Court notes that moval hearing state in writing the decision the interest of HCWD in the child’s welfare reached and the reasons upon which the safety important is a very inter- decision is based. Goldberg Kelly, limited, est. The interest appellants is a 254, 270, 90 1011, 1021, 25 U.S. L.Ed.2d interest, conditional liberty since cus- tody of the child remained with HCWD. This case is accordingly remanded to the re the district The order of district court for modification of its judg- by appellants inform HCWD quires that by ment adding the above two additional them. against charges of the written notice due process requirements. Hereafter, case, Doe Therefore, particular in this involving cases committed children in the charges the effectively notified was HCWD, when removal hearing to a provided her and was against from a is deemed appropri- be The Court charges. those confront HCWD, ate by due process requires: com who parties the that cognizant if 1) parents The given notice anonym are not afforded plained to the (at removal of the child the time of report about apprehensive they may be ity, the exigent removal when circum- and thus to HCWD misconduct ing parental stances exist promptly thereafter) or child’s in the interest the state’s undermine removal; stating the reasons for the v. To Ong safety. See public welfare 2) parents a full opportuni- assess Cir.1977). In (9th 552 F.2d 305 vey, ty at the hearing present witnesses of HCWD concern ing important this behalf; and evidence on their re who individuals anonymity to affording 3) The parents may have a retained at- the light of misconduct parental port torney at the hearing; appel interest limited, liberty conditional 4) The re hearing the notice must be lants, by finds that conducted the Court neutral officer; hearing court satisfies detached district by the quired not re- and HCWD requirements hearing officer conducting the parents re- the have acted in such a manner moval must state in writing that the child is a child without adequate the decision reached and the care, reasons likely the upon which the decision is based. would continue to act in such a manner the child will continue to be a child judgment, The district court’s as modified without adequate parental care if a reu- by opinion, this is Affirmed. plan nification prepared were pursuant to section 2151.412 of the Revised [2151.41.2] Code, permanent and the commitment is APPENDIX in the best interests of the child. If the Revised Section 2151.353of Ohio Code grants court permanent custody under provides: division, court, this upon request dependent or Disposition neglected any party, shall file a opinion written child. setting forth findings its of fact and con- clusions of law in relation to the proceed- abused, an adjudged child is (A) If the ing. child, the court dependent

neglected, or following orders of of the any make may (B) No order for permanent custody disposition: shall be made at the hearing at which the child is adjudicated abused, his neglected, remain with child to (1) Permit the or dependent custodian, except and unless or other guardian, com- parents, plaint alleging abuse, neglect, and limitations conditions or de- subject to such pendency contains a prayer supervi- including prescribes, requesting as the permanent custody, and pro- court for by the summons sion as directed served on the parents child; contains a full ex- tection of the planation that the granting of an order temporary the child to (2) Commit for permanent custody permanently di- wel- department of the vests them of their parental rights and of welfare fare, department county contains a full explanation of right the administration which has assumed to be represented by counsel and to have welfare, children services county counsel áppointed pursuant to Chapter board, organization, other certified 120. of the Revised Code if they are indi- pur- commission youth the Ohio gent. as study report diagnostic pose of the (B) section 5139.05 provided If after making disposition as authoriz- Code, or a relative either Revised (A)(2) ed (3) division or section, of this state, or outside residing within a motion is filed in accordance with sec- certi- in a officer for probation tion Revised [2151.41.3] home; foster fied Code, which requests motion permanent custody child, of the may grant (3) temporary the child to the Commit permanent custody of the child to the or agency institution movant in accordance with section 2151.- state authorized and this state or another 414 of the Revised Code. [2151.41.4] care, treatment, qualified provide child reqúires; or that (C) temporary custody No order of shall be made unless the summons served permanent the child to the (4) Commit that parents on the contains a statement of wel- department custody county abuse, an de- adjudication neglect, the administra- which has assumed fare tem- welfare, pendency may result in an order of county children child tion of porary custody, explanation a full that board, any other certified or to services granting temporary that of an order of determines if the court organization, 992 1388, 1403, APPENDIX —Continued 71 L.Ed.2d 599 (1982) (Rehn- cause will the removal of the quist, J. dissenting); United States v. Ya- child from their custody until the zell, 352, 382 341, U.S. 86 S.Ct. 16 court terminates the order of temporary L.Ed.2d (1966). 404 custody or permanently divests them of a,nd The second and third elements are also their parental rights, explana- full case, satisfied. In this a conclusive inter right tion of their represented to be by pretation of O.R.C. 2151.4121 may § have counsel and to have counsel appointed obviated the need for deciding the minimal

pursuant Chapter 120. of the Revised requirements of process. due No such con they indigent. Code if are interpretation clusive of O.R.C. § has CONTIE, given Judge, dissenting. by the state Adopt Circuit courts. part ed as a of a comprehensive statute decision majority’s articulates dealing children, with the custody of O.R.C. process requirements regarding 2151.412provides for § a written judicially- children, summary removal of who are al- approved, comprehensive plan to reunify ready temporary legal in the state’s custo- children in the state’s temporary legal cus dy, parents. from I believe tody with their natural parents. I believe court, court, that the district and this that requiring parties in this case to deciding should have abstained from comply with the requirements of O.R.C. questions presented constitutional in this 2151.412could § the answers to the case the Pullman under abstention doctrine. major two issues in this case without resort to the federal courts. Under circumstances, certain limited federal district court should abstain from The first issue is whether general Ohio’s deciding constitutional issues arising from welfare of the child standard removal for construction of state law. Railroad Com too vague comport process. with due Co., mission of Texas v. Pullman 312 U.S. The complaint the.posi- is that a 61 85 S.Ct. L.Ed. 971 Pull tion of Doe does not what ac- know man abstention should only applied if: tion she must take or avoid to keep custody (1) the case touches a sensitive area of problem of her child. This is squarely ad- public policy which federal courts should dressed in the Ohio statute. The compre- not enter unless absolutely necessary; (2) hensive plan required reunification application of state law may avoid the need O.R.C. 2151.412 must state actions § “[t]he adjudication; constitutional (3) required are take to question state law in has not been conclu adjust their conduct or conditions so that sively interpreted by the state courts. longer adequate the child will no be without Cabell, Manney 654 F.2d (9th 1283 2151.412(D)(2). care.” O.R.C. § Cir.1980), denied, cert. Thus, legislature the Ohio content S.Ct. 71 L.Ed.2d 866 arguably vague welfare of the child I believe that all three elements are A in Mary position satis standard. present statement, fied in the case. The approved field of fami would have a written ly clearly judge, relations is so within stating exactly the state’s what she would domain that federal courts have to do or not do to ensure her should be hesi tant absolutely appli- to enter unless would not be taken from her. necessary. Since Kramer, 745, 102 likely Santosky v. cation of O.R.C. 2151.412 would U.S. become effective 1. 2151.412 did not much as the statute is remedial in and § O.R.C. nature relief, plaintiffs only injunctive was three months until which seek October Ohio’s against application and two after Jane Doe had been removed usual bar retroactive of a filing apply lawsuit. Inas- months of this statute should not here. not, then able de- the federal courts would be of a constitutional necessity avoid would the constitutional issues on the vagueness, abstention to decide termination record with a fully-developed basis of a proper. interpretation of state law. Ac- definitive difficult, issue in second, more I this case to the cordingly, would remand is due before case is what this to abstain court with instructions district wheth Who determines is removed.2 parties complied such time as the have until her conduct adjusted Doe has er 2151.412and that statute with O.R.C. § plan? reunification with the accordance interpreted by the courts conclusively to be hearing is notice and sort of What of Ohio. does While O.R.C. provided? answers, I be definitive provide any not first have the should that state courts

lieve related to decide questions

opportunity courts Ohio the statute. application greater protection for

may well obvi required, thus constitutionally

than is federal resorting to the

ating the need re may courts example, state For

courts. in the removal judicial participation

quire cir exigent

decision, cases where except in involved, written since the are

cumstances judicially ap must be plan

reunification proved. al., KEMMIS, Winton et Plaintiffs-Appellants, majority’s that the decision fully I realize req only states the minimum may and that courts Ohio’s uirements3 McGOLDRICK, James P. individually and expan statute more interpret still Ohio doing business as James P. McGoldrick danger majority’s sively. The real Consulting Engineers, Defendant-Appel may inhibit the state’s holding is that lee. creativity dealing with a difficult social No. 82-5466. do squarely issue which is in the state’s (Rehn Santosky, main. at 1441 Appeals, United States Court of J., dissenting). quist, Ninth Circuit. synonymous Abstention is not with abdi- Argued Jan. and Submitted 1983. cation. I that the first only propose parties required proceed in the state courts so May Decided 1983. applied that the state’s statute could be interpreted. process, In the the need for adjudication by

constitutional the federal

courts could be avoided. Even if it were

2. If the district re- court had abstained and Inasmuch as I would remand the case with quired comply abstain, and defendants instruction to the district court I 2151.412, requirements express with the process require- O.R.C. § no view on the due if, when, only adopted by the second issue majority. would arise ments implemen- a child was I removed. believe that requirement tation of the statute’s written for a plan reunification would reduce the number removals due to the more certain standard for removal.

Case Details

Case Name: Jane Doe v. Seth Staples

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 6, 1983

Citation: 706 F.2d 985

Docket Number: 81-3549

Court Abbreviation: 6th Cir.