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April 15, 1981

Jodie BARNES, Plaintiff,
Richard BYRD, Floyd Clark, James Ross, Gerald Thompson and Bobby Joe Barnes, Defendants

The opinion of the court was delivered by: QUACKENBUSH


Plaintiff brought this action to vindicate an alleged deprivation of rights secured by the 13th and 14th Amendment and remedied through 42 U.S.C. ยงยง 1985(3) and 1983 respectively. The Defendants are Department of Social and Health Services' (DSHS') caseworker Richard Byrd, Plaintiff's husband at the time Bobby Joe Barnes both sued in their individual capacity and Defendants Clark, Ross, and Thompson, Byrd's supervisory chain of command sued in their official capacities. Plaintiff charges the Defendants with conspiring to give physical custody of the family's infant daughter to her husband. All Defendants have moved for summary judgment of dismissal with the DSHS Defendants asserting their entitlement to qualified good faith immunity in addition to the general defense of the lawfulness of their actions.

 The following facts are undisputed. Within a month after birth of the child to Plaintiff and Defendant Bobby Joe, DSHS for Spokane County Washington received a report that the infant was abused by Plaintiff. DSHS took the infant into state custody for shelter care and filed a dependency petition with the court alleging the abuse. *fn1" Plaintiff and her husband requested a shelter care hearing and a court appointed counsel. Both requests were granted. *fn2" Both parents, represented by counsel, appeared and testified. Defendant Byrd, who was assigned the case, presumably also testified. Superior Court Judge Merryman issued a shelter care order dated October 17, 1979 in Spokane County Superior Court action No. 00344-1.

 On December 15, 1979, Defendant Bobby Joe separated from Plaintiff and moved to Colorado. To permit Plaintiff to take the infant to Colorado and attempt a reconciliation of the marriage, DSHS moved to dismiss the dependency petition. The following day, December 30, 1978, the mother took the child to Colorado. *fn3" The reconciliation attempt failed. Plaintiff returned with the infant to Spokane.

 Again, acting upon a report, DSHS, through Byrd, filed another dependency petition and took the child into custody. This time, however, Plaintiff did not request a shelter care hearing. The court on its own motion, based on the finding that the "mother had previously injured the child and that there was reason to believe it may happen again," ordered shelter care custody and appointed a guardian ad litem. On April 5, 1979, one day before the expiration of the statutory 30 day limitation on shelter care orders, the court extended the prior order. Plaintiff did not contest that order.

 The dependency petition hearing was set for April 17, 1979. Both parents received notice and requested counsel. Defendant Byrd filed his predisposition study on April 6, 1979, as he was required to do.

 Judge Merryman, who had presided over the hearing in action No. 00344-1, presided over the April 17 hearing. Defendant Byrd testified that the father was present and able to provide adequate care and supervision. Therefore, the infant no longer met the definition of dependent under the statute, R.C.W. 13.34.030, and DSHS, through the assistant Attorney General, moved to dismiss the petition. *fn4" The State's attorney advised the court that the father scheduled a return flight to Colorado and was prepared to take the child.

 Plaintiff did not appear personally at this hearing. *fn5" However, her counsel attacked the dependency petition upon grounds that it simply realleged the first petition's foundation. Counsel then advised the court that dismissal of the petition would be tantamount to giving the father physical custody of the child in Colorado. Counsel informed the court that the father had filed a dissolution action in Colorado but the mother had not yet been served in that action. Counsel stated that the mother did not object to the dismissal of the petition but did object to the result following such dismissal, i. e. custody in the father. Counsel characterized this result as the state choosing sides to favor the father with custody.

 The court rejected counsel's invitation "to order custody" and refused "to interfere" and "police a divorce case between the parties". The court concluded that, since DSHS believed that it had no case to support "dependency", the court should consequently dismiss the petition. *fn6" The Judge ordered the petition dismissed. See, CR # 55, Plaintiff's Memorandum Exhibit 1, Reporter's Transcript Spokane County Superior Court.

 When she received notice in late April of her husband's action in Colorado for legal custody, Plaintiff sued in Spokane for dissolution of the marriage and custody of the child. On July 6, 1979 Plaintiff was awarded temporary legal custody of the child. Subsequently, the Colorado court determined that Washington, and not Colorado, had jurisdiction under the Uniform Act. Therefore, the Colorado Court ordered the child returned to the physical and, by that time, temporary legal custody of the mother.

 Plaintiff charges the Defendants acted ultra vires in deciding to dismiss the dependency petition. That decision, she urges, violated her constitutional right to family integrity, due process, and equal protection of the laws. Plaintiff has not attacked either the legislative scheme or the court authority prescribing and circumscribing the above results. Plaintiff has not charged that DSHS, or these Defendants, followed a policy, practice, or custom to do what she claims was done in this instance. Plaintiff apparently accepts the decision to discharge the first dependency petition to permit her to remove the child to Colorado. Her complaint focuses specifically upon alleged concerted action to dismiss the petition so that the father might remove the child to Colorado. The suit essentially is a re-assertion of the contentions raised in the April 17, 1979 hearing but with federal jurisdiction invoked by allegations of constitutional deprivation.

 The doctrines of res judicata and collateral estoppel apply in federal civil rights proceedings to give claim or issue preclusion effect to adjudications in state court. Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980); Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S. Ct. 807, 46 L. Ed. 2d 657 (1976); Francisco Enterprises v. Kirby, 482 F.2d 481 (9th Cir. 1973), cert. denied, 415 U.S. 916, 94 S. Ct. 1413, 39 L. Ed. 2d 471 (1974). The factual underpinnings related to Plaintiff's abuse of the child, the Defendant's legal duty to take the child into shelter care and to file a dependency petition were before the state courts on the occasions cited. Plaintiff was a party to those proceedings and had ample opportunity to fully and fairly litigate the questions involved. In the April 17, 1979 dependency petition hearing Plaintiff's counsel contested, in substance, the right of the agency to dismiss a petition being aware that the result would be removal of the child from the jurisdiction. Nevertheless, the Judge ordered the petition dismissed. The issue and claim preclusion effect of this prior litigation would prevent Plaintiff from relitigating the questions of factual validity of abuse or factual basis for shelter care custody and dependency petitions or Defendants' authority or lawful discretion to decide to move to dismiss the dependency petition knowing the given result. Furthermore, the issues underlying the defense of good faith immunity in this action would be unassailable on these grounds alone. Plaintiff would not be entitled to take this case to a jury. But there are more compelling reasons for granting summary judgment in this case.

 Plaintiff argues that the Defendants action represents an intentional interference in her protected right to family integrity. That argument asserts too much under these facts. Here, we are concerned with what right one parent may have when the wishes of that parent and those of the other parent are in conflict and the child is between so that the child's best interests are served with a resolution in favor of one parent. Assuming the Defendants jointly decided to dismiss the petition, not every agency decision, however serious the impact, automatically involves due process protections. See, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S. Ct. 2100, 2103, 60 L. Ed. 2d 668 (1979). The decision imposed no sanction upon Plaintiff. If it deprived her of anything at all, the decision deprived Plaintiff of an individualized interest in the temporary physical custody of the child an interest which actually had been significantly narrowed by prior court order placing the child in shelter care custody.

 This state action is significantly different from a state's attempt "to force the breakup of a natural family over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest" without adequate recognition and protection to the parental rights. Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 97 S. Ct. 2094, 2119, 53 L. Ed. 2d 14 (1977) (Stewart, J. concurring). The government did not rupture the integrity of the family unit. That rupture was incident to the parents' decisions. Contrary to Plaintiff's characterization of the plain facts, DSHS Defendants did not withhold the infant child, properly taken into temporary custody, from their mother without judicial authorization, compare, Duchesne v. Sugarman, 566 ...

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