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Gardner v. Parson

argued: January 10, 1989.

PATSY DENISE GARDNER, BY HER NEXT FRIEND, ALMA GARDNER, AND ALMA GARDNER, ON HER OWN BEHALF, APPELLANTS,
v.
NORMA PARSON, CHARLES HAYWARD, JOHN RAGO, DOROTHY F. LOFTUS, DAVID DESMOND, CAROL CANFIELD, SUSAN HAYES GRAHAM, CAROL HARVEY, WILLIAM RAY JOHNSON, QUEEN ESTHER GARDNER, PATRICIA LEVINS, DR. DAVID W. HUNG, SUSAN DEGRAFF, JANET CATTONE, BARBARA A. BROWN, ELIZABETH M. VON FRANKENBERG, VIVIAN B. YOUNG, BETTY MONTGOMERY, LILLIAN COBIN, KAREN DOHERTY, HENRY STROUD, SHIRLEY CUPERY, CAROLYN S. KLEIN, JANE ERISMAN, JANE BULLEN, ANNIE B. KING, JANET H. WADDELL AND BARBARA HERR



On Appeal from the United States District Court for the District of Delaware, D.C. Civil No. 87-0417.

Higginbotham, Cowen, and Aldisert, Circuit Judges.

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge

On August 5, 1987, Alma Gardner ("Alma"), individually and as next friend for her granddaughter Patsy Gardner, a minor ("Patsy"), filed an action under 28 U.S.C. § 1983 in the United States District Court for the District of Delaware. The complaint named numerous parties as defendants in connection with alleged constitutional violations arising from their care of Patsy, a severely mentally retarded teenager. On July 26, 1988, the district court entered an order removing Alma as Patsy's next friend and refusing to appoint a replacement, and dismissing Patsy's claims. The court also granted Defendants' motions for summary judgment as to Alma's individual claims. This appeal followed.

We affirm the district court's dismissal of Alma as next friend. We determine, however, that the district court abused its discretion in failing to appoint a new next friend, and in dismissing Patsy's claims. Therefore, we will reverse and remand with instructions to the district court to appoint a next friend to prosecute Patsy's claims. We also affirm the court's grant of summary judgment in favor of Defendants on Alma's individual claims.

I.

This appeal is the latest, but not the final, chapter in a series of hearings, trials and appeals in state and federal courts. This case deeply disturbs us, because a handicapped child has been the subject of seemingly endless litigation, which has prevented her from receiving on a consistent basis the special family, educational, and medical services which she requires. The child's predicament has been exacerbated by a troubled family situation and inadequate performance by state social service personnel.

A review of the extensive procedural history is necessary for a proper understanding of this case. Patsy Gardner was born on March 13, 1974, and has been mentally retarded since birth.*fn1 As an infant Patsy resided with her mother, Patricia Gardner, in Wilmington, Delaware. The Delaware Division of Social Services ("DSS") was alerted that Patsy was not being adequately cared for by her mother, and, pursuant to a hearing on March 25, 1977, the family court awarded temporary custody of Patsy to DSS. After a more extensive hearing on May 17, 1977, at which the family court found that Patricia had neglected Patsy as to both basic and special needs and had failed to cooperate with DSS, the court retained temporary custody of Patsy in DSS and ordered that Patsy be placed with Alma.*fn2 The court also ordered that Patricia be committed to the Delaware State Hospital for evaluation. App. at 284-85.*fn3

In late 1981, DSS learned that Patsy's behavioral problems were becoming unmanageable. The DSS social worker assigned to Patsy petitioned the family court for a hearing to show cause as to why Patsy should not be placed temporarily at the Terry Children's Psychiatric Center for evaluation. The court found that Patsy's behavior suggested a need for an in-depth evaluation, that Alma had been medicating Patsy without a prescription, and that Patricia, Patsy's mother, was presently living with Alma. Based on this, the court ordered an immediate placement at the Terry Center for evaluation and diagnosis not to exceed 90 days. After three weeks of testing Patsy was returned to Alma. App. at 285-87.

On June 4, 1982, Alma Gardner, proceeding pro se, filed a complaint in the United States District Court for the District of Delaware alleging that the DSS social worker violated several constitutional and statutory provisions during the custody dispute. Alma also sought custody of the child. In a memorandum opinion and order issued December 6, 1982, the district court found that the social worker had not acted improperly and held that Alma did not allege facts establishing a federal constitutional or statutory violation.*fn4 The court also held that it lacked jurisdiction over the custody claim. App. at 287-89. The instant suit, except for obvious factual similarities, is not related to this earlier federal suit.

Beginning in December 1982, Alma kept Patsy home from school because of continuing respiratory problems for which Patsy had been medically excused through January 1983. On March 1, 1983, when Patsy had not yet returned to school, the Division of Child Protective Services ("DCPS")*fn5 filed in Delaware family court a "Dependency/Neglect" Petition for Protective Supervision, pursuant to Del.Code Ann. tit. 10, § 937 (1975 & Supp. 1988).*fn6 Pursuant to a hearing, on May 25, 1983 the family court issued an opinion and order which, while not finding Patsy dependent or neglected, stated that: DCPS shall have continued legal custody of Patsy; Patsy's placement with Alma may be terminated by DCPS at any time without further court order; and DCPS may permit continued placement with Alma if Alma ensures that Patsy attends school regularly, participates in the school program, submits to monitoring by school officials of any medications prescribed for Patsy, and agrees to undergo psychiatric examination. App. at 297-98.

After Alma presented a medical excuse for her previously unexplained absence from the May 25, 1983 hearing, the family court held another hearing on July 27, 1983. After the second hearing, the court announced that its May 25 order would stand. On July 28, the court issued an order denying Alma's petition for sole custody, awarding sole custody to DCPS, ordering DCPS to arrange a new placement for Patsy with arrangements for Alma to visit Patsy, and directing Alma not to interfere with Patsy's removal and new placement. In August 1983, Patsy was placed with Esther Gardner. App. at 300-01.*fn7

Alma appealed the family court decision. The Delaware Superior Court initially affirmed the decision, but the Delaware Supreme Court remanded the case to the Superior Court for further consideration. On April 30, 1985 the Superior Court issued an opinion concluding that Alma had a liberty interest in the continuation of her familial relationship with her grandchild, that this interest is entitled to procedural due process protection, and that the family court proceedings violated due process. Thus, the case was remanded to the family court for a hearing upon certain issues. App. at 291-319.*fn8

On November 26, 1986, after eleven days of trial, the family court issued its opinion. App. at 320-47. The superior court, in its remand instruction, had ordered the family court to afford Alma: a fair hearing upon the DCPS' dependency/neglect petition and an opportunity to cross-examine DCPS' witnesses; a hearing at which to present her custody petition; and notice that DCPS proposed to remove Patsy from Alma's care and place her in a foster home. App. at 316. The family court found Patsy to be a "dependent and/or neglected child", within the meaning of Del. Code Ann. tit. 10, §§ 901(8) and (11) (Supp. 1988), because her physical, mental and emotional well-being were threatened or impaired. App. at 334-35, 347. Thus, the court issued an order denying Alma's petition for custody of Patsy, and directing that DCPS retain temporary custody of Patsy. App. at 347. This decision was affirmed by the superior court on May 21, 1987, app. at 348-53, and by the Supreme Court on March 2, 1988, app. at 354-55.

On August 5, 1987, Alma, individually and as next friend of Patsy, filed the instant action in the United States District Court for the District of Delaware under 28 U.S.C. § 1983, and a number of other federal and state statutory and constitutional provisions. The complaint named as defendants numerous DCPS administrators, school officials, social workers, and others involved in Patsy's case ("Defendants" or "Appellees"), and it alleged constitutional violations arising from the Defendants' care of Patsy. On July 8, 1988, the district court heard arguments and made bench rulings on Defendants' motions for summary judgment. On July 26, 1988, the district court entered an order removing Alma as Patsy's next friend and refusing to appoint a replacement, and effectively dismissing, pursuant to Fed. R. Civ. P. 17(c), the claims asserted by Alma on behalf of Patsy. The court also granted Defendants' motions for summary judgment as to Alma's individual claims. App. at 210-11. Alma filed a notice of appeal on August 25, 1988.

II.

In this section of the opinion we will discuss Patsy's claims, and in the following section we will discuss Alma's individual claims. Regarding Alma's ability to act as "next friend" and sue on behalf of Patsy, the district court stated in its order:

2. Defendants' motions to dismiss the claims asserted on behalf of Patsy Gardner by Alma Gardner as next friend of Patsy Gardner are granted because it is apparent from the record that Alma Gardner does not have standing under Fed.R.Civ.P. 17(c) to present these claims on behalf of Patsy Gardner.

3. In view of the finding by the Court that plaintiffs have brought this suit in an attempt to make a collateral attack on the issues litigated in the Delaware State Courts, the Court will not appoint a replacement for Alma Gardner as "next friend" for Patsy Gardner.

6. Plaintiffs' motion to amend the Complaint on the question of Alma Gardner's standing to be "next friend" and to request a hearing on the issue of whether Alma Gardner is an appropriate representative for Patsy Gardner in a suit for money damages is denied on the basis of the findings of the Family Court of the State of Delaware, as affirmed by the Delaware Superior Court and the Delaware Supreme Court, in its decision to deny Alma Gardner's petition for custody of Patsy Gardner.

App. at 210-11.

After determining that Alma had no "standing" to act as Patsy's next friend, the court refused to appoint another next friend and dismissed Patsy's claims.*fn9 The ...


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