19-3987-cr Lowell v. Vermont Dep't for Children and Families

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of December, two thousand twenty.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges, JANE A. RESTANI, Judge. * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

MIRIAM LOWELL, SETH HEALEY, Plaintiffs-Appellants,

v. 19-3987-cv

VERMONT DEPARTMENT OF CHILDREN AND FAMILIES, "DCF," KENNETH SCHATZ, COMMISSIONER, DCF, KAREN SHEA, DEPUTY COMMISSIONER FOR THE FAMILY SERVICES DIVISION ("FSD"), DCF, CHRISTINE JOHNSON, DEPUTY COMMISSIONER FOR FDS, DCF, EMILY CARRIER, DISTRICT DIRECTOR, DCF,

* Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation. CATHERINE CLARK, DIRECTOR, COMMISSIONER'S REGISTRY REVIEW UNIT, DCF, KATHLEEN SMITH, FAMILY SERVICES SUPERVISOR,CHRISTINE GADWAH, FAMILY SERVICES WORKER, DCF, KATHLEEN GREENMUN, SUBSTANTIATION HEARING OFFICER, DCF, Defendants-Appellees,

JOHN AND JANE DOES 1-10, Defendants.

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FOR PLAINTIFFS-APPELLANTS: COLIN R. HAGAN, Shlansky Law Group, LLP, Chelsea, Massachusetts.

FOR DEFENDANTS-APPELLEES: BENJAMIN D. BATTLES, Solicitor General, for Thomas J. Donovan, Jr., Attorney General, Montpelier, Vermont.

Appeal from the United States District Court for the District of Vermont

(Crawford, Ch. J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the decision of the district court is AFFIRMED.

Plaintiffs-appellants Miriam Lowell and Seth Healey ("plaintiffs") appeal

the decision of the district court issued November 18, 2019, denying their motion for a

temporary restraining order and preliminary injunction. Plaintiffs brought the action

below seeking declaratory and injunctive relief as well as damages against defendant-

appellant Vermont Department for Children and Families ("DCF") and certain DCF

-2- officials. DCF had brought a proceeding against plaintiffs seeking to determine

whether to substantiate a report of child abuse or neglect. Contending that the

allegations were false, plaintiffs sought injunctive relief to stop DCF from conducting an

administrative hearing and listing their names on Vermont's child protection registry.

In its ruling, the district court concluded that the Younger abstention doctrine barred

plaintiffs' claims for injunctive relief. See Younger v. Harris,

(1971). The

court also denied defendants' motion to dismiss the action, noting that Younger

abstention did not apply to plaintiffs' claims for damages. This appeal followed. We

assume the parties' familiarity with the underlying facts, procedural history of the case,

and the issues on appeal.

We review de novo whether the requirements for abstention have been

met. See Disability Rights New York v. New York,

(2d Cir. 2019); Diamond

"D" Constr. Corp. v. McGowan,

, 197-98 (2d Cir. 2002). Although the

findings of facts are reviewed for clear error, whether those facts support a finding that

the case meets an exception to the Younger abstention doctrine is a mixed question of

law and fact that is reviewed de novo. See id. at 198.

As a general matter, Younger abstention requires federal courts to abstain

from exercising jurisdiction over state-level proceedings. Three types of proceedings

trigger Younger abstention: 1) "ongoing state criminal prosecutions," 2) state "civil

enforcement proceedings," and 3) proceedings involving state courts "perform[ing] their

-3- judicial functions." Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. U.S. 69, 70 (2013).

Moreover, after applying the categorical Sprint approach, this court will consider three

additional, non-dispositive factors to determine whether abstention is appropriate: 1)

whether there is a "pending state proceeding," 2) whether that proceeding "implicates

an important state interest," and 3) whether "the state proceeding affords an adequate

opportunity for judicial review of . . . federal constitutional claims." Falco v. Justices of

Matrimonial Parts of Supreme Ct. of Suffolk Cnty.,

(2d Cir. 2015) (citing

Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n,

(1982). Altogether,

even if Younger's prerequisites are satisfied, a federal court may exercise jurisdiction if

the plaintiff can make a showing of "bad faith, harassment or any other unusual

circumstance that would call for equitable relief."

(quoting Younger,

).

The district court correctly concluded that Vermont's substantiation

process is akin to a criminal prosecution, falling within Younger's second category. In

determining whether a civil enforcement action is akin to a criminal proceeding, we

consider whether the action involved a state sanctioning a party "for some wrongful

act," was "initiated [by the State] to sanction the federal plaintiff," and involved

"[i]nvestigations [that] culminat[e] in the filing of a formal complaint or charges."

Sprint, 571 U.S. at 79-80. The substantiation process at issue here possessed these

features. Therefore, DCF's proceeding constituted an ongoing state proceeding akin to

a criminal prosecution.

-4- The substantiation proceedings also satisfy the additional Middlesex

factors. Vermont has a vital interest in protecting the well-being of its children. See

Moore, 442 U.S. at 435 ("Family relations are a traditional area of state concern.").

Moreover, the state proceedings provide a sufficient forum for review of federal

constitutional claims. After an accusation of wrongdoing, DCF can initiate an

investigation. Vt. Stat. Ann. Tit. 33 § 4915, 4915a, 4915b. If DCF finds that the claims are

substantiated, it provides notice of that fact to the accused. It also informs the accused

that DCF can place the individual on the child protection registry. Vt. Stat. Ann. tit. 33 §

4916a(a). The accused is notified of the right to request administrative review of the

decision, id., which is conducted by a neutral arbiter who is not an employee of DCF, id.

§ 4916a(f). The burden of proof rests on DCF and the accused has the right to present

documentary evidence and other evidence. Id. §§ 4916a(d), a(e). A person's name is

not placed on the registry until after the accused is granted an administrative review,

and the substantiation is upheld. Id. § 4916a(h). The accused can appeal that decision

to the Human Services Board. Id. §§ 4916a(i), b. That decision, in turn may be appealed

to the Vermont Supreme Court. Id. tit. 3 § 3091(f). Accordingly, plaintiffs have an

opportunity to raise their constitutional claims at the hearing before the Human

Services Board and before the Vermont Supreme Court.

Plaintiffs argue that this review of their constitutional claims arrives too

late, beyond the point that their names are listed on the child protection registry,

-5- potentially affecting their employment in an irreparable way. Plaintiffs' names,

however, have not been placed on the child-protection registry, and the district court

stayed the administrative review process pending this appeal. Moreover, in Spargo v.

New York State Comm'n on Judicial Conduct,

, 79 (2d Cir. 2003), this Court held

that the "ability to raise constitutional claims in subsequent 'state-court judicial review of

[an underlying] administrative proceeding' is sufficient to provide plaintiffs with a

meaningful opportunity to seek effective relief through state proceedings and bar

federal courts from taking jurisdiction over the same claims while the state proceeding

is pending" (emphasis added). Thus, the state process provides sufficient opportunity

to raise constitutional claims.

Plaintiffs also argue that federal court should have applied the "bad faith"

exception to Younger, and exercised jurisdiction because they have shown "bad faith"

and "harassment" by defendants. Diamond "D," 282 F.3d at 198 (quoting Younger,

). The district court correctly held that the actions alleged in the complaint are

not sufficient to sustain a finding of bad faith. To show bad faith, a plaintiff must show

that "the state proceeding was initiated with and is animated by a retaliatory, harassing,

or other illegitimate motive" and "ha[s] no reasonable expectation of obtaining a

favorable outcome." Diamond "D," 282 F.3d at 199. A state proceeding that "is

legitimate in its purposes, but unconstitutional in its execution -- even when the

violations of constitutional rights are egregious -- will not warrant the application of the

-6- bad faith exception." Id. (internal citation omitted). Here, the case was initially brought

to the attention of a mental health counselor by the accusations of Lowell's daughter,

not by the reporting of a DCF employee. Hence, the suggestion that the state

proceeding was therefore initiated with a harassing or retaliatory motive, or that the

state had no reasonable expectation of a favorable outcome, is not plausible, and

plaintiffs have not met their burden of showing that the bad faith exception should

apply.

We have reviewed plaintiffs' remaining arguments on appeal and

conclude they are without merit. Accordingly, we AFFIRM the order of the district

court denying plaintiffs' claims for a temporary restraining order and preliminary

injunctive relief.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

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