McCrery v. Aner

738 F. Supp. 930, 1990 U.S. Dist. LEXIS 7184, 1990 WL 81299
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 11, 1990
DocketCiv. A. No. 90-1231
StatusPublished

This text of 738 F. Supp. 930 (McCrery v. Aner) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCrery v. Aner, 738 F. Supp. 930, 1990 U.S. Dist. LEXIS 7184, 1990 WL 81299 (E.D. Pa. 1990).

Opinion

MEMORANDUM

LOUIS H. POLLAK, District Judge.

Plaintiff Michael McCrery has filed this pro se civil rights complaint on behalf of himself, his daughter and his stepson. Plaintiff alleges that employees of Community Youth Services (“CYS”) of Delaware County, Pennsylvania, have taken his children from him without due process of law.1 The complaint is grounded in sections 1983, 1985(2) and 1986 of Title 42 of the United States Code.

With his complaint, plaintiff has filed a request for leave to proceed informa pau-peris, and an eloquent application for appointment of counsel. On April 10, 1990, plaintiff submitted a supplemental petition, entitled “Petition to invoke the Pendent Jurisdiction of this Court.” These motions are the subject of this memorandum.

As it appears plaintiff is unable to pay the cost of commencing this action, leave to proceed informa pauperis will be granted in an accompanying order.

According to his complaint, plaintiff is currently incarcerated in SCI Graterford, where he is serving a life sentence imposed pursuant to his August 4, 1988 conviction for the slaying of his wife, Patricia McCrery. The children, Stephan Blumberg and Kathryn McCrery, are, respectively, the stepson and daughter of plaintiff, and also are the children of Patricia McCrery. For the purposes of this memorandum, it will be assumed that plaintiff does in fact “have the same parental rights in Stephan [931]*931as he would in a natural child.”2 Stephan and Kathryn were taken into the custody of the CYS after Mr. McCrery’s arrest; Mr. McCrery has not been in contact with the children since that time, though he has attempted to remain in contact. Petition for Pendent Jurisdiction, Exhibit “B”.

Plaintiff alleges various due process defects in the placement and termination proceedings initiated by CYS. The specific abuses alleged by plaintiff include (1) inadequate notice of the proceedings (111199, 103), (2) CYS’s decision not to place the children in the homes of friends and relatives of plaintiff (¶¶132, 81-89), (3) CYS’s prejudicial deference to the wishes of the children’s maternal grandparents (¶ 124), and (4) CYS’s violation of a May 24, 1988, preliminary court order regarding the temporary placement of the children.

The most serious allegation made by plaintiff is that, although to date “none of [plaintiff’s] parental rights have been terminated by any court” (11100), Stephan has been adopted by Jane and John Doe, and has been moved, with Kathryn, to some western state (¶ 95). According to plaintiff, the preliminary order prohibits long-term removal of Stephan and Kathryn from the state (¶ 101). Although it appears that, since the submission of the complaint, plaintiff’s parental rights in Kathryn have been formally terminated,3 nonetheless, plaintiff’s complaint makes serious charges of improprieties involving CYS’s custody and care of Stephan and Kathryn.

Plaintiff requests the following relief:

That the situation should be restored to the point before these violations occurred, and, thus:
(1) The children be returned to the jurisdiction of the Pennsylvania courts.
(2) The adoption of Stephan be voided and dissolved.
(3) That CYS relinquish custody of the children.
(4) That custody of the children be vested in a caretaker nominated by Michael and acceptable to the Court.
(5) The children be informed that Michael had repeatedly denied killing their mother.
(6) That the children be informed that Michael is still seeking his “day in court” to prove his innocence.
(7) The defendants shall cease all efforts to isolate and alienate Michael and the children.
(8) That Kathryn and Stephan should be reunited with Michael under the guidance of a professional to be nominated by Michael and acceptable to the Court.
(9) That Michael’s parental rights shall continue unabated unless and until such time as they are specifically revoked by Due Process.
(10) That the defendants shall bear the costs and expenses of these reliefs.

Complaint. Mr. McCrery also seeks the costs and other fees “associated with his attempts to seek Due Process,” in the amount of approximately $11,000.00, as well as an award of $50,000.00 for “emo[932]*932tional pain and suffering,” and $100,000.00 in “exemplary punitive damages” for each of the plaintiffs.

Although the entire complaint is based on § 1983, because of the nature of the errors alleged and the relief requested, plaintiffs complaint can be fairly characterized as having two separate goals: (1) to seek review of the decisions of the CYS and the Orphan’s Court in their care of Kathryn and Stephan, that is, to appeal the state court orders, and (2) to protect plaintiffs from the imminent harm caused by the alleged violations of their due process rights. That the main goal is to appeal the determinations of the Orphan’s Court is a conclusion supported by the petition for pendent jurisdiction. See, e.g., Petition for Pendent Jurisdiction, 11117-8.

Appeal of the CYS’s Decisions

The Supreme Court has held that there is a fundamental liberty interest of parents in the care, custody and management of their children, an interest which is protected by the Constitution. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). As a result, parental terminations are subject to a strict review. Santosky, supra; In re T.R., 502 Pa. 165, 465 A.2d 642 (1983); In re T.N.J. and 321 Pa.Super. 355, 468 A.2d 517 (1983). Nothing in the complaint indicates that plaintiff, either through his counsel,4 or acting on his own behalf, has objected to the removal of the children from the state, or appealed in the state courts the adoption of Stephan; however it does appear that plaintiff is appealing the order terminating his parental rights in Kathryn.

Accordingly, that portion of the complaint which appeals the actions of the CYS and the Orphan’s Court must be dismissed for lack of jurisdiction, and the petition to invoke pendent jurisdiction must be denied on the same grounds. If, as Mr. McCrery alleges, the defendants are making incorrect decisions regarding the placement of Stephan and Kathryn, or the termination of his parental rights in either or both children, then plaintiff must first pursue all avenues of state court review of the CYS’s actions. “Federal courts are without authority to function as an appellate arm of the state courts.” Pilkinton v. Pilkinton, 389 F.2d 32 (8th Cir.), cert. denied, 392 U.S. 906, 88 S.Ct. 2057, 20 L.Ed.2d 1364 (1968) (regarding appeal, on fifth and fourth amendment grounds, of divorce decree entered in state court). Pursuant to 28 U.S.C.

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Related

Railroad Comm'n of Tex. v. Pullman Co.
312 U.S. 496 (Supreme Court, 1941)
Santosky v. Kramer
455 U.S. 745 (Supreme Court, 1982)
Ni Pilkinton v. Catherine I. Pilkinton
389 F.2d 32 (Eighth Circuit, 1968)
In re T.R.
465 A.2d 642 (Supreme Court of Pennsylvania, 1983)
In re Adoption of T.N.J.
468 A.2d 517 (Superior Court of Pennsylvania, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
738 F. Supp. 930, 1990 U.S. Dist. LEXIS 7184, 1990 WL 81299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccrery-v-aner-paed-1990.