Parental Rights

Interesting Custody Case Involving a Child and His Grandparents vs. the Father

As usual, at this point in the litigation the key questions focus on procedure.

|The Volokh Conspiracy |

From Doe v. Franklin County Children Services, decided Wednesday by Judges Stranch, Thapar & Readler (6th Cir.); you can also read the TRO opinion issued by Judge Algenon L. Marbley (S.D. Ohio), which notes that the father has allegedly "not had a relationship [with the son] for his entire life."

John Doe is a thirteen-year-old boy in the temporary custody of Franklin County Children Services. He had been living with his mother in Ohio, but Children Services suspected that he was being abused or neglected. So Children Services filed a case in Ohio state court to have Doe removed from his mother's home. The court ordered Doe removed, and it is now presiding over the resulting custody dispute.

During the proceedings, the state court gave Children Services custody of Doe. Children Services then placed Doe with his maternal grandmother in Ohio, and Doe would like to remain there. But [Children] Services decided to place Doe with his father in Florida after Florida officials determined that the father could provide Doe with a suitable home.

When [Children] Services made the decision to transfer Doe to his father's custody, Doe sued them in federal court. He alleges that Children Services denied him due process by making this placement decision without giving him an opportunity to be heard. The district court granted Doe a preliminary injunction preventing Children Services from moving him to Florida. Children Services appealed and moved to stay the injunction pending the appeal. In this order, we consider only the motion to stay the injunction.

The Sixth Circuit rejected Children Services' arguments that the district court should have abstained in favor of state proceedings:

First, only three categories of cases call for Younger abstention: ongoing state criminal prosecutions, state proceedings that are "akin to criminal prosecution," and civil proceedings "involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions." … [O]nly the second category could plausibly describe the underlying state court proceeding. Children Services filed the case to remove Doe from a potentially abusive home, and "the temporary removal of a child in a child-abuse context is … in aid of and closely related to criminal statutes."

But removal proceedings are not at all "akin to criminal prosecution" as far as the child is concerned. And here, it is the child who has filed the federal lawsuit. That difference matters, because the Court has described proceedings in this second category as those that are "characteristically initiated to sanction the federal plaintiff." That does not describe this case, where the federal plaintiff is not an abusive parent, but a child. In the absence of full and thorough briefing, we will not broadly construe the Younger categories to apply to this different situation—especially given the Court's instruction that Younger "extends to the three 'exceptional circumstances' [it has identified], but no further."

Second, the Rooker-Feldman doctrine does not apply to Doe's case. That doctrine "merely recognizes" that federal district courts lack jurisdiction to review state court judgments, and it has "no application to judicial review of executive action, including determinations made by a state administrative agency." Doe is not challenging a state court judgment; he is challenging the decision of Children Services, an agency of Franklin County, Ohio….

And the court also rejected Children Services' argument that it should get a stay because it's likely to prevail on the merits of its appeal:

[I]n a motion to stay, our task is to evaluate Children Services' likelihood of success in appealing the injunction …. Doe's claim to a due process violation is not completely implausible, and the other factors seem to weigh strongly in his favor: Irreparable harm can come from uprooting a thirteen-year-old boy from his home state and sending him to live in an unfamiliar state with a parent he's only recently come to know. (Not to mention enrolling him in a new school—with new classmates and different pandemic protocols—in the middle of the semester.)

And the harm to others is comparatively low—the father has an interest in living with his child, but a temporary preservation of the status quo is less harmful to him than the destabilization would be to Doe. Finally, any public interest in moving Doe to Florida under these circumstances is also low. Thus, Children Services has not made a strong showing that the district court abused its discretion when it balanced these factors and ultimately granted the injunction.

Children Services' three merits arguments—whether considered alone or together—do not amount to a strong showing of likely success on appeal. And the balance of harms again weighs in Doe's favor: staying the injunction might cause Doe to be moved to Florida now and then shuffled back to Ohio once the appeal is decided. Any monetary and bureaucratic costs that Children Services will face are far less severe in comparison. Thus, we decline to exercise our discretion to stay the injunction.

We emphasize that this decision is limited to the unusual procedural nature of this case. The states' interest in resolving child-custody disputes is exceptionally strong, and federal court involvement in custody proceedings will almost always be inappropriate. Although we decline to stay the injunction in this case, we caution all district courts against entangling themselves in this area of traditional state concern.

NEXT: Another Big Law and Religion Case on the Horizon?

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  1. “The Sixth Circuit rejected Children Services’ arguments that the district court should have abstained in favor of federal proceedings:”

    You mean “in favor of state proceedings,” no?

    1. Whoops, thanks, fixed.

      1. Is “Child Services” and “Children Services” the same entity?

        1. Same thing, though the court uses both labels; I’ve revised “Child” to “[Children].”

  2. I don’t understand what’s going on here. The father, having custody of the child, has the right to sue in the child’s name. Who is claiming to represent the child here against the wishes of the father? It’s one thing for a state agency to intervene against a father using parens patriae. It’s another for a private individual like an attorney to just walk into court and simply claim to represent the child.

    1. The father doesn’t currently have custody, the maternal grandmother does. Childrens Services proposed to transfer custody to the father, at which point the child successfully filed for a TRO to prevent that from happening. From the start of the TRO:

      “Plaintiff John Doe is a twelve-year-old child in the custody of Franklin County Children’s Services (“FCCS”). (ECF No. 1 at ¶ 8). Doe was removed from his mother’s custody as part of an Abuse, Neglect and Dependency (“AND”) action initiated in the Franklin County Court of Commons Pleas, which issued an order removing Doe from his mother’s custody and placing Doe in the custody of FCCS. (Id. at ¶¶ 9, 11). FCCS initially placed Doe with his maternal grandmother, who Doe has had a relationship with for much of his life and who also lives in central Ohio. (Id. at ¶ 13, 14). Doe has been living full-time with his maternal grandmother for approximately one year and is enrolled in a central Ohio school district for the 2020-2021 school year. (Id. at ¶ 17; ECF No. 2 at 3). As part of the AND case, Doe was appointed a Guardian Ad Litem, who filed a report and recommendation indicating placement with his grandmother was appropriate. (ECF No. 1 at ¶¶ 19, 20). ”

      I can’t tell if it’s the grandmother or the Guardian Ad Litem driving the lawsuit.

    2. I think you’re mistaken on your facts. The father does not yet have custody of the child.

      The child could be filing in his own name (rare but sometimes allowed) but the headline suggests that the actual filing is by the current “custodian” – the maternal grandparents.

      1. Why not the Guardian Ad Litem?

        As I understand the grandmother does not have custody she is merely taking care of Doe and has not been awarded custody.

        1. Yeah, this is a good point. Custody is technically still with Children’s Services, who have temporarily placed Doe with his grandmother. Maybe Professor Volokh has more information than we do about who’s driving the suit, because his post seems to assume that the grandmother is involved. I agree it seems like it could be the Guardian Ad Litem, though.

  3. If this suit is allowable, why can’t an attorney walk into federal court claiming to represent a fetus and arguing there was some sort of non-constitutional violation like a procedural irregularity in pre-abortion paperwork?

    The court seems to simply assume that the minor has capacity to sue and the attorney represents him without checking.

    1. If I were the father and intervening, I would first ask for the matter to be assigned to a different judge. I would argue that if children have a due process right to a hearing to decide who they want as their parents, surely litigants equally have a due process right to a hearing on who they want as their judge.

      The father is automatically the parent unless proven unfit by clear and convincing evidence. His constitutional rights to parent his child are not subject to the whims of the state, nor the whims of his child, nor the whims of a federal judge.

      1. Not always. There are ways for a father to waive his parental rights, either voluntarily or through abandonment, which appears to be the case here.

        And then there is “best interest of the child” which appears to be whatever the social worker wants it to be.

  4. The key answers to questions we must know are—is the child Cuban and what year is this taking place?? So Republicans and Democrats will take the opposite position based on the year it takes place.

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