Nevin v. Freedman ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KEVIN J. NEVIN; RENEE NEVIN, a
minor child, by her next friend and
natural father and guardian, Kevin
Nevin,
Plaintiffs-Appellants,
v.
No. 98-2619
MARLENE FREEDMAN, Officially and
individually; DANA ZEMKE,
Individually; SHIRLEY SKIRKANICH,
Individually; DANA PAIGE, Officially,
Acting Director; FAIRFAX COUNTY
DEPARTMENT OF FAMILY SERVICES,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Leonie M. Brinkema, District Judges;
Thomas Rawles Jones, Jr., Magistrate Judge.
(CA-98-336-A)
Argued: October 27, 1999
Decided: December 29, 1999
Before WILKINSON, Chief Judge, and WILKINS and MICHAEL,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: John M. DiJoseph, KAVRUKOV, MEHROTRA &
DIJOSEPH, L.L.P., Arlington, Virginia, for Appellants. James
Edward Wilcox, Jr., Assistant County Attorney, Fairfax, Virginia, for
Appellees. ON BRIEF: David P. Bobzien, County Attorney, Robert
Lyndon Howell, Deputy County Attorney, Fairfax, Virginia, for
Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Kevin Nevin and his daughter Renee filed suit in federal district
court against the Fairfax County Department of Family Services
(DFS), the director of the DFS, and three DFS social workers. The
Nevins claim that defendants by their actions with respect to the cus-
tody of Renee have violated the U.S. Constitution, the Virginia Con-
stitution, a federal statute, and state tort law. The district court granted
defendants' motion to dismiss. Finding no merit in any of the Nevins'
claims, we affirm the judgment.
I.
In 1995, the Nevin family consisted of Kevin Nevin (hereinafter
Nevin), his wife Kay Ticer Nevin, Renee (daughter of Kevin and Kay
born in 1994) and Susan (Kay's eight-year-old daughter from a previ-
ous marriage). In November 1995, upon a petition of DFS, the Juve-
nile and Domestic Relations Court for Fairfax County entered an
order finding that Renee and Susan were "abused and/or neglected
children." Both Nevin and his wife stipulated that "had the evidence
been presented, the Department would have proved by a preponder-
ance of the evidence that [Susan and Renee] were abused and/or
2
neglected as defined in Virginia Code § 16.1-228." Subject to certain
court-ordered conditions, custody remained with Nevin and his wife.
In January 1996, Nevin was found in contempt for failing to comply
with one of the conditions.
In February 1996, with "active assistance" from DFS official Dana
Zemke, Kay left the marital home with both Renee and Susan to live
with her parents, the Ticers. Nevin did not live in the Ticer home and
had no control over the conditions of the home, although he did con-
tinue to see his family fairly regularly. On April 18, 1996, DFS offi-
cials filed an emergency removal petition that alleged the Ticer
residence was "chaotic," "filthy" and unsuitable for children. The
Juvenile Court awarded temporary custody of Renee to DFS and
scheduled a preliminary hearing. DFS notified Nevin of the removal
several days later.
The preliminary removal hearing was held in May 1996. The Juve-
nile Court decided to keep the removal order in effect. As a result,
Renee was placed in foster care. DFS crafted Renee's foster care plan
without seeking input from Nevin. Following Renee's placement in
foster care, Nevin was restricted to between one and four and a half
hours of supervised visitation with Renee per week. Nevin was also
not permitted to take Renee with him to various parenting classes.
Nevin alleges that during this period of time the DFS social workers'
animus toward him foreclosed opportunities for him to either try to
get his daughter back or at least to have more contact with her.
On August 7, 1997, Nevin and Renee (together the Nevins) filed
a habeas petition in the Fairfax County Circuit Court. Nevin sought
to regain custody over Renee based on a variety of alleged constitu-
tional violations. On September 26, 1997, the court dismissed the
Nevins' petition. The Nevins' appeal to the Virginia Supreme Court
was dismissed because of their untimeliness in filing a Petition for
Appeal.
In November and December 1997, the Juvenile Court held a hear-
ing on the merits of the DFS abuse and/or neglect petition. The court
found that DFS had shown by a preponderance of the evidence that
Renee was an abused and/or neglected child and continued her cus-
tody with DFS. Nevin appealed to the Fairfax County Circuit Court.
3
The Nevins then sued DFS, the director of DFS (Dana Paige), and
three DFS social workers (Marlene Freedman, Dana Zemke, and Shir-
ley Skirkanich) in federal district court. The Nevins brought a § 1983
action alleging both constitutional and statutory violations, actions
based on the Virginia Constitution, and two state law tort claims.
Defendants filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss all of
the Nevins' claims. On May 8, 1996, the district court, for reasons
stated from the bench, granted defendants' motion to dismiss as to the
following: all claims against DFS, all constitutional claims that have
been adjudicated by state courts or that are "inextricably intertwined
with the merits of a state court judgment," claims of violations of
rights under the federal Adoption Assistance and Child Welfare Act,
and all claims based on conduct by individual defendants in filing and
pursuing the removal petition as well as for actions taken pursuant to
a court order. The court deferred the motion to dismiss in all other
respects pending submission of supplemental briefs addressing immu-
nity issues.
On October 21, 1998, the district court, in a written opinion, dis-
missed the rest of the Nevins' claims. The court found that qualified
immunity barred the Nevins' remaining claims based on federal law.
The court also dismissed the Nevins' Virginia state law causes of
action. The Nevins now appeal.
II.
With respect to the Nevins' federal constitutional claims, we must
first determine if the Nevins have "alleged the deprivation of an actual
constitutional right at all." Wilson v. Layne , 119 S. Ct. 1692, 1697
(1999) (internal quotation marks omitted). The Nevins first argue that
the defendants have violated their substantive due process rights. We
disagree. "Substantive due process does not categorically bar the gov-
ernment from altering parental custody rights." Weller v. Department
of Soc. Serv., 901 F.2d 387, 392 (4th Cir. 1990). Rather, the govern-
ment runs afoul of substantive due process only when its actions
"shock the conscience." See, e.g., County of Sacramento v. Lewis, 523
U.S. 833, 846-47 (1988); Weller, 901 F.2d at 391; Hall v. Tawney,
621 F.2d 607, 613 (4th Cir. 1980); Fitzgerald v. Williamson, 787 F.2d
403, 408 (8th Cir. 1986).
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Nothing that happened to Nevin or Renee meets that definition.
Nevin was a party to the original Juvenile Court proceeding in 1995
that determined that Renee was abused and/or neglected. In fact,
Nevin stipulated that the DFS's evidence was sufficient to support
that finding. Two months later, Nevin was found in contempt for vio-
lating a condition placed on him by the Juvenile Court order. In light
of these facts, the subsequent decision not to give custody of Renee
to Nevin does not seem conscience-shocking at all.
The Nevins also argue that their procedural due process rights have
been violated. We agree with Nevin that he has a protectible liberty
interest in the care and custody of his child. See Santosky v. Kramer,
455 U.S. 745, 753 (1982). But even accepting the Nevins' allegations
as true, we cannot agree that the procedures afforded them were con-
stitutionally deficient.
To be sure, no hearing was provided Nevin before custody of
Renee was initially given DFS based on the emergency removal peti-
tion. But "[d]ue process does not mandate a prior hearing in cases
where emergency action may be needed to protect a child." Weller,
901 F.2d at 393. "However, in those `extra-ordinary situations' where
deprivation of a protected interest is permitted without prior process,
the constitutional requirements of notice and an opportunity to be
heard are not eliminated, but merely postponed." Id. (internal quota-
tion marks omitted). Here Virginia's post-deprivation procedural safe-
guards satisfy the requirements of procedural due process. It is
undisputed that Nevin was informed of his daughter's removal. More-
over, a removal hearing took place less than a month after the emer-
gency removal, thereby "judicially ratify[ing] the state's emergency
action." Id. at 396.
Nevin was then afforded ample process in his attempt to regain
custody of and increase his visitation rights with his daughter. In
November and December 1997, the Juvenile Court held the merits
hearing on the DFS abuse and/or neglect petition. The court found
that Renee was abused and/or neglected and continued her custody
with DFS. Nevin was then allowed under Virginia law to appeal this
order to the Fairfax County Circuit Court. Moreover, a guardian ad
litem had represented Renee's interests throughout the abuse and
neglect case.
5
In addition, subsequent to losing custody of Renee, Nevin filed two
motions seeking orders to increase visitation rights with his daughter.
He also filed a habeas corpus petition seeking the return of custody
over Renee. Moreover, the version of Va. Code Ann.§ 16.1-281(C)
in effect at the time provided Nevin with the right to petition the court
for a review of Renee's foster care plan. Thus, even accepting the
Nevins' allegations as true, we simply cannot hold that their federal
due process rights have been violated in view of the full panoply of
procedures afforded them under state law.
The Nevins also claim that the defendants violated the Virginia
Constitution, state tort law, and the federal Adoption Assistance and
Child Welfare Act. We have considered those claims and find them
to be without merit.*
III.
Having failed to allege a deprivation of a federal right, the Nevins'
claims amount to nothing more than an attempt to drag the federal
courts into a matter of state domestic relations law. See Diaz v. Diaz,
568 F.2d 1061, 1062 (4th Cir. 1977) ("domestic relations matters are
... questions of singular significance to the administration of State
affairs"). For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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*The Nevins also argue that the magistrate improperly awarded fees
to the defendants on two separate occasions. These orders, however, can-
not be attacked on appeal as the Nevins have failed to comply with Fed.
R. Civ. P. 72(a). Rule 72(a) requires objections to the order of a magis-
trate judge to be filed within 10 days of service of the order. And a party
who fails to comply with Rule 72(a) waives his right to appeal a magis-
trate's order. See, e.g., Wells v. Shriners Hosp., 109 F.3d 198, 199 (4th
Cir. 1997); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th
Cir. 1996); Illinois Conference of Teamsters and Employers Welfare
Fund v. Steve Gilbert Trucking, 71 F.3d 1361, 1367-68 n.5 (7th Cir.
1995).
6