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August 27, 1985

JOSEPH HENNESSEY AND HELEN HENNESSEY, individually and as parents and next friends of ELIZABETH HENNESSEY, a minor, Plaintiffs,
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, CAROL WINTERBURN, individually and as Counselor for the Department of Social and Health Services, State of Social and Health Services, State of Washington; and MIKE PADELFORD, Administrator, Pasco Community Services Office, Department of Social and Health Services, Defendants

Robert J. McNichols, United States District Judge.

The opinion of the court was delivered by: MCNICHOLS

This is a civil rights action brought pursuant to 42 U.S.C. §§ 1983, 1985(3) and 1988 against the State of Washington, Department of Social and Health Services and two of its employees. *fn1" The operative facts are as follows. On or about October 4, 1983 plaintiffs' four year old daughter, Elizabeth, was taken to Dr. Nancy Johnson for treatment of a shattered front tooth. Two days later on October 6th, Elizabeth returned with a similar injury. On both occasions, a bicycle accident was given as the cause of injury.

 Dr. Johnson suspected child abuse. She immediately notified Child Protective Services. *fn2" Defendant Carol Winterburn, a DSHS caseworker, responded to the call. Ms. Winterburn felt that the evidence indicated possible child abuse and she contacted the Kennewick Police Department. On October 7, 1983, Elizabeth was taken into protective custody by the police department and temporary foster care was arranged for her by Ms. Winterburn.

 Further investigation was conducted that same day by Officer Larson of the Kennewick Police Department who was accompanied by Ms. Winterburn. From all indications it appeared to both Officer Lawson and Ms. Winterburn that Elizabeth had in fact sustained her injuries in a fall from her bicycle. Officer Lawson and Ms. Winterburn reported their findings to the Benton County Prosecutor, Les Ching, together with a recommendation that protective custody be removed. Prosecutor Ching concurred with their recommendation and he removed Elizabeth from protective custody at approximately 5:00 p.m. on October 7.

 At some point in her discussions with Prosecutor Ching, Ms. Winterburn expressed concern that Elizabeth's recurring accidents might be due to developmental problems. Ms. Winterburn suggested to the plaintiffs that further evaluation of Elizabeth might be in order to determine the cause of Elizabeth's accidents. This suggestion understandably was met with some degree of opposition from plaintiffs. Ms. Winterburn renewed her concerns with Prosecutor Ching who agreed that further evaluation of Elizabeth was warranted. On October 9, 1983 Ms. Winterburn filed a request for a dependency petition to obtain a court ordered evaluation of Elizabeth. Apparently, Elizabeth remained in her parents' custody pending the outcome of the proceedings. The proceedings were eventually terminated in favor of the plaintiffs on January 12, 1984 on the motion of the prosecuting attorney based upon a lack of supporting evidence. This action followed.

 All defendants have moved for summary judgment pursuant to Rule 56 Fed.R.Civ.P. The motions are based on several grounds and I will address each one in turn.


 A threshold issue presented by the defendants is that the court lacks subject matter jurisdiction over this action. Defendants' argument is based upon the long-standing "domestic relations" exception to federal court jurisdiction. This exception has its roots in early judicial construction of the diversity statute. Csibi v. Fustos, 670 F.2d 134 (9th Cir. 1982). A fair reading of Csibi would seem to limit its application to such cases. *fn3" But see Firestone v. Cleveland Trust Co., 654 F.2d 1212 (6th Cir. 1981)(holding that federal question suits which are in substance domestic relations actions will not be entertained in federal court.)

 Apart from the confusion over whether the domestic relations exception is only applicable to diversity actions, I believe that under the facts of this case the exception does not apply. As a jurisdictional limitation the exception has been narrowly construed. Csibi at 137. Only those cases most closely resembling ecclesiastical actions have been considered absolutely outside federal court jurisdiction. Id. Cases including those where a federal court is asked to grant a divorce or annulment, determine support payments, or award custody of a child are considered to be "at the core" of the exception. Id. As such, federal courts must decline jurisdiction in those cases concerning domestic relations only when "the primary issue concerns the status of parent and child or husband and wife." Buechold v. Ortiz, 401 F.2d 371 (9th Cir. 1968).

 In this action, plaintiffs seek redress for alleged violations of their constitutional rights. Plaintiffs do not challenge the competency of the state court in settling a domestic dispute. Nor is this an area which is particularly suited to state regulation and control. Cf., Csibi at 137. In this case, the subject of domestic relations is peripheral to the issues presented. Federal courts are not ousted of their jurisdiction merely because the suit arises in a domestic relations context. Elam v. Montgomery County, 573 F. Supp. 797 (S.D. Ohio 1983). Accordingly, I hold that this court does have jurisdiction over this action and I will now turn to the defendants' other contentions.

 Plaintiffs' § 1985 Claims

 Defendants have not tailored their present motion for summary judgment to address plaintiffs' claim under 42 U.S.C. § 1985(3). Presumably this claim is to be disposed of by the other grounds upon which defendants rely. Nevertheless, this claim may be dealt with quite summarily at the outset. Section 1985(3) is directed towards conspiracies which are motivated by racial or other class-based discriminatory animus. Mollnow v. Carlton, 716 F.2d 627 (9th Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1595, 80 L. Ed. 2d 126 (1984). The plaintiffs have neither alleged nor offered any evidence to indicate that the defendants were so motivated. Accordingly, plaintiffs' § 1985(3) claims are dismissed for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)6.


 Defendant DSHS, relying on Quern v. Jordan, 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979) argues that suits against the State of Washington under 42 U.S.C. § 1981 et. seq are barred by the eleventh amendment. Defendant DSHS further contends that this immunity is extended to departments of state government citing Sykes v. State of California ...

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