Amanda Underwood v. West Virginia Dep't of Health, No. 13-1807 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1807 AMANDA UNDERWOOD, Plaintiff - Appellant, v. THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES; JOHN J. NAJMUSKI, Commissioner, West Virginia Department of Health and Human Services, in his official capacity; KATHRYN A. BRADLEY, Community Services Manager of the Berkeley/Jefferson/Morgan County Offices of the West Virginia Department of Health and Human Resources, Individually; MARY CARPER, Individually; JUSTIN CASTLEMAN, Individually; TZOURI OLIVER, Individually; SHELLY NICEWARNER, Individually; UNKNOWN EMPLOYEES OF THE DEPARTMENT OF HEALTH AND HUMAN RESOURCES, and Supervisors of Mary Carper, Individually; MARY DOE(S), Individually; JOHN DOE(S), Individually, Defendants Appellees, and STORM SHILEY, Individually, Defendant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:11-cv-00506) Argued: March 18, 2014 Decided: April 4, 2014 Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. ARGUED: Nancy A. Dalby, Charles Town, West Virginia, for Appellant. Natalie C. Schaefer, SHUMAN, MCCUSKEY & SLICER, PLLC, Charleston, West Virginia, for Appellees. ON BRIEF: Kimberly M. Bandy, SHUMAN, MCCUSKEY & SLICER, PLLC, Charleston, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: This Amanda appeal concerns Underwood during the process the course afforded of to abuse Appellant and neglect proceedings in West Virginia state court and culminating in the termination of Underwood s parental rights. Underwood was originally drawn into the purview of the state s Department of Health and Human Resources (DHHR) because her husband, Travis Harrell, was protective the subject services. of an investigation Following an ex by parte its child proceeding accompanied by a series of concededly sloppy paperwork, DHHR removed Underwood s children from her physical custody without court ratification or the setting of a hearing. 1 Eventually, after Underwood demonstrate conceded improvement medical during neglect a and was probationary unable period, to the Circuit Court of Berkeley County, West Virginia terminated her parental rights. Underwood then filed a motion for reconsideration, alleging that DHHR had committed serious procedural improprieties while handling her case. The circuit court found cause to believe that DHHR had indeed violated Underwood s due process rights when 1 A comprehensive recitation of the factual record and procedural history can be found in the district court s May 28, 2013 opinion granting Appellees motion for summary judgment. Underwood v. W. Va. Dep t of Health and Human Serv., No. 1100506, 2013 WL 2319253, at *1 (S.D. W.Va. May 28, 2013). 3 custody of the notification Infants and was without removed setting a from her without date for a court preliminary hearing[.] J.A. 138. Notwithstanding this finding, however, the court denied Underwood s motion for reconsideration. It found that during the subsequently-imposed improvement period, Underwood had not demonstrated sufficient progress to justify a return of her children. Underwood timely appealed and filed a writ of habeas corpus for the return of her children in the Supreme Court of Appeals of West Virginia. Building off the circuit court s holding, she argued that DHHR had violated her federal due process rights under the Fourteenth Amendment and under West Virginia law. According to Underwood, the entirety of the flawed termination proceedings, including her concession of medical neglect, flowed from the improvident removal of her children, such that the DHHR actions poisoned the ultimate termination of her parental rights. On September 26, 2011, the state supreme court affirmed the circuit court s judgment order rested and denied primarily on Underwood s the petition. court s The differing interpretation of the events that transpired during Underwood s court appearances, Specifically, the court held that DHHR had never relinquished (rather, only legal physical custody custody 4 had of been Underwood s restored) children and that Underwood had waived certain process rights. It concluded that the record shows that petitioner s due process rights were not violated . . . despite the circuit court s finding [otherwise]. J.A. 455B. Underwood s parental rights having been terminated, DHHR subsequently arranged for the legal adoption of the children, which, as we were advised by counsel at oral argument, has been consummated. Underwood s instant lawsuit, filed in the Southern District of West Virginia on July 25, 2011, alleges the same nucleus of facts litigated contained claims seven pursuant in the state counts, to 42 courts. including U.S.C. Her Count § 1983 that amended III, which Appellees complaint alleges deprived Underwood of due process, and Count V-A, which alleges that the West Virginia Abuse and Neglect Statute is unconstitutional on its face and as applied to Underwood. 2 The parties submitted cross-motions for summary judgment. After several rounds of briefing, the district court granted DHHR s motion and denied Underwood s motion. Underwood v. W. Va. 2 Underwood had also sought injunctive relief to prohibit DHHR from retaining custody, but that claim was denied by the district court under the Rooker-Feldman doctrine and is not challenged on appeal. Underwood v. W. Va. Dep t of Health and Human Serv., No. 11-00506, 2012 WL 2026547, at *2-3 (S.D. W.Va. June 5, 2012). 5 Dep t of Health and Human Serv., No. 11-00506, 2013 WL 2319253 (S.D. W.Va. May 28, 2013). Having had the benefit of oral argument and having carefully reviewed the briefs, record, and applicable law, we agree with the district court s analysis as set forth in its well-reasoned memorandum. Id. Accordingly, we affirm on the reasoning of the district court. AFFIRMED 6

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