A federal appeals court rejected a father’s claims that the Suffolk County Department of Social Services interfered with his visitation rights and therefore violated his rights to due process by helping the mother and the children move to Mississippi.
A unanimous panel of the U.S. Court of the Appeals for the Second Circuit affirmed a March 2015 ruling by Eastern District Judge Leonard Wexler in Uwadiegwu v. Department of Social Services of the County of Suffolk, 14-cv-03219, to dismiss Ajamu Uwadiegwu’s complaint for failure to state a claim.
According to court papers, Uwadiegwu neglected his two children by abusing their mother and taking drugs on several occasions. DSS filed a neglect petition against him in June 2012.
After Uwadiegwu refused to take a drug test and, on the day a hearing was scheduled for the neglect petition, left court before his case was heard, the Family Court ordered that the children be placed in foster care.
The following month, the Family Court entered a finding of neglect and directed Uwadiegwu to obtain a substance abuse evaluation and take part in both a parenting skills program and a domestic violence prevention program. It granted him supervised visitation of his children.
In April 2013, DSS filed another neglect petition against Uwadiegwu, this time alleging he failed to meet the terms of the Family Court’s July 2012 order and with respect to one of the children, identified in court papers as A.U. The court again ordered him to obtain a substance abuse evaluation and participate in a parenting skills program and a domestic violence prevention program. He was allowed to have supervised visits with A.U.
But in a civil rights suit filed in 2014, Uwadiegwu alleged that DSS violated his First, Fourth and Fourteenth Amendment rights by failing to provide him with supervised visits. He also alleged that in July 2013, DSS facilitated and assisted the “surreptitious” relocation of his children to Jackson, Mississippi.
The defendants included Suffolk County and several DSS employees.
In dismissing Uwadiegwu’s suit, Wexler wrote that none of the defendants’ actions described in Uwadiegwu’s petition could be considered “arbitrary, shocking or egregious;” nor did they result in the “wholesale relinquishment” of Uwadiegwu’s rights with respect to his children. (See Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 275 [2d Cir. 2011] and Nicholson v. Scoppetta, 344 F.3d 154, 172 [2d Cir. 2003]).
Wexler noted that it was the Family Court, not DSS, that denied Uwadiegwu custody of his children but had given him visitation rights. “There is nothing preventing plaintiff from traveling to Mississippi and exercising those rights,” the judge said.
According to Wexler’s decision, on Dec. 23, 2013, the Family Court vacated all orders of protection against Uwadiegwu, so visits with his children were no longer required to be supervised.
On Jan. 14, Second Circuit Chief Judge Robert Katzmann and Judges Ralph Winter and John Walker Jr. found that Uwadiegwu’s claim failed, even if assuming that he has a constitutionally protected interest in visiting his children—an issue that the Second Circuit has not resolved—but in which some courts would have ruled in his favor.
In one such case, the Ninth Circuit ruled in 2006 in Brittain v. Hansen, 451 F.3d 982, 992, that non-custodial parents with court-ordered visitation rights have a liberty interest in the “companionship, care, custody and management” of their children, albeit an interest that is “unambiguously lesser in magnitude” than that of a parent with full legal custody.
But the Second Circuit panel wrote that the defendants in Uwadiegwu are entitled to qualified immunity from Uwadiegwu’s procedural due process claim, that the due process claim does not provide allegations that could give rise to municipal liability, and that he does not allege government misconduct that rises to the level of a substantive due process violation.
“Simply put, defendants’ conduct under these circumstances does not shock our conscience,” the panel said.
Assistant County Attorney Christopher Gatto appeared for Suffolk County Attorney Dennis Brown’s Office.
Vesselin Mitev, Uwadiegwu’s attorney and a partner at the Miller Place-based Ray, Mitev & Associates, said his client has since reunited with his family. However, Mitev said he is “deeply troubled” by the court’s decision and the consequences it could have for non-custodial parents with visitation rights.
“Even if you get your kids 50 percent of the time, according to this decision, you have no fundamental liberty interest in those children,” Mitev said.