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Blum v. Probate Court of Chittenden County

decided: April 12, 1978.

JAY BLUM, PLAINTIFF-APPELLANT,
v.
PROBATE COURT OF CHITTENDEN COUNTY, VERMONT, L. JOHN CAIN, JUDGE OF CHITTENDEN PROBATE COURT, JOSEPH HANDY, COMMISSIONER, DEPARTMENT OF SOCIAL REHABILITATIVE SERVICES, VERMONT, DALE AND JEANNE GOLDHABER OF BURLINGTON, VERMONT, ROBERT POLWORTH, CLERK, SUPERIOR COURT, CHITTENDEN COUNTY, DEFENDANTS-APPELLEES



Consolidated appeal by plaintiff, in an action brought under 42 U.S.C. § 1983 and 28 U.S.C. § 2241, from orders of the United States District Court for the District of Vermont, Coffrin, J., dismissing the amended complaint for failure to state a claim and denying a motion to amend or alter the judgment.

Lumbard, Moore and Mulligan, Circuit Judges.

Author: Lumbard

LUMBARD, Circuit Judge

This consolidated appeal from orders of the United States District Court for the District of Vermont, Coffrin, J., dismissing appellant's complaint and denying his motion to amend the judgment, involves a constitutional challenge to the termination of appellant's parental rights in Massachusetts judicial proceedings and subsequent adoption of appellant's son in Vermont pursuant to a Vermont judicial decree. Alleging that the Massachusetts termination proceedings were constitutionally infirm and infected the Vermont adoption decree, appellant commenced this action against the Vermont court and judge who authorized the adoption, the Vermont administrator responsible for adoptive consent, and the Vermont-domiciled adoptive parents,*fn1 seeking declaratory and injunctive relief under 42 U.S.C. § 1983 and habeas corpus relief under 28 U.S.C. § 2241. After considering the allegations against each appellee, the district court dismissed the second amended complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief can be granted. We find appellant's pleadings devoid of a cognizable constitutional claim and affirm.

Jay Blum's loss of custody of his son and subsequent attempt to regain it, insofar as gleaned from the complaint, begins with appellant's marriage to Constance Brown in Massachusetts in 1967. Their son, Nathan David Dan-Israel Blum, was born on September 30, 1968. A month after Dan celebrated his fourth birthday, his mother committed suicide, leaving appellant griefstricken by the loss of his wife and suffering from a hereditary sleep disorder. On November 14, 1972 appellant placed Dan under the care and custody of The Avon Home, a licensed child placement agency in Cambridge, Massachusetts; thereafter, from December 1972 to February 15, 1973 appellant successively resided in two Massachusetts hospital mental health units to which he voluntarily admitted himself for treatment of his sleep disorder.

On March 6, 1973 The Avon Home was appointed legal guardian for Dan Blum by the Middlesex Probate Court in Massachusetts, and on November 27, 1973 Cambridge Family and Children's Services, the successor to The Avon Home, petitioned that court for permission to place Dan for adoption without appellant's consent. Appellant was notified of the purpose and date of the hearing on this petition and engaged counsel to represent him, but he failed to attend the hearing. Instead, action on the advice of his psychiatrist, who told him that he would have little chance to prevail at the hearing, appellant attempted to kidnap his son in order to gain custody. Failing in this attempt, appellant left for Israel where he remained until some time prior to January 8, 1975. Appellant's attorney, however, appeared at the hearing on appellant's behalf, and apparently asked for leave to withdraw as counsel when his client did not appear.

On August 20, 1974 the Middlesex Probate Court granted the petition, ruling that Dan Blum could be adopted without his father's consent. In January 1975 after returning to the United States, appellant consulted his attorney; but it was not until March 22, 1975 that appellant petitioned the Massachusetts court for permission to file a late appeal from its order of termination of his parental rights. This request was denied in August 1975.

While appellant's petition was pending in the Massachusetts court, Cambridge Family and Children's Services transferred custody of Dan Blum to the Vermont Department of Social Rehabilitative Services which consented to Dan's adoption by Dale and Jeanne Goldhaber, Vermont domiciliaries. On May 5, 1975, without notice to appellant, the Chittenden County Court of Vermont, L. John Cain, J., issued the adoption decree.

Ultimately seeking to regain custody of his son, appellant commenced this action in June 1976 for declaratory, injunctive and habeas corpus relief against appellees Dale and Jeanne Goldhaber, the Chittenden County Court, Judge Cain, and Joseph Handy, the Commissioner of the Vermont Department of Social Rehabilitative Services.*fn2 Appellant claimed that by acting in accordance with a constitutionally infirm Massachusetts parental termination decree, appellees had deprived him of his constitutionally protected parental rights. His challenge to the Massachusetts decree was premised on the purported utilization in the Massachusetts proceeding of a vague and overbroad statutory termination standard and inadequate procedural safeguards, including deficient notice of the hearing.

Because the Goldhabers, in connection with an action previously filed by them and pending in Chittenden Superior Court, had obtained a court order preliminarily enjoining appellant from contacting them or their adoptive son, appellant, in addition to other requested relief, sought to enjoin preliminarily the prosecution of that case pending resolution of this action.*fn3 Consequently, coincident with the filing of the complaint, appellant moved for an order temporarily restraining the Goldhabers from litigating their state suit. This motion was argued before the district court on June 11, 1976 and denied at that time. Following this denial, each appellee moved to dismiss the complaint under Rule 12(b)(6), Fed.R.Civ.P.*fn4 On December 21, 1976, the day these motions were scheduled for oral argument before the district court, appellant requested and was granted leave to file an amendment to his previously amended complaint.*fn5

By opinion and order dated February 22, 1977 Judge Coffrin granted the motions to dismiss, ruling that the second amended complaint failed to state a claim against any of the movants. Central to this appeal is the district court's determination that, as revealed by the record, appellant was accorded due and sufficient notice of the Massachusetts proceeding so as to confer in personam jurisdiction on the Middlesex Probate Court, compare Griffin v. Griffin, 327 U.S. 220, 90 L. Ed. 635, 66 S. Ct. 556 (1946), and thus entitle its termination decree to full faith and credit by the Vermont authorities acting in accordance with relevant Vermont law, regardless of the validity of the legal principles on which the decree was based.*fn6 On April 21, 1977 Judge Coffrin declined to amend or alter his judgment under either Rule 52(b) or 59(e), Fed.R.Civ.P. After considering appellant's pro se assertions that the pleadings contained material errors of omission and inclusion, the district court properly ruled, inter alia, that having been continuously represented by counsel, appellant was bound by counsel's efforts on his behalf.

The gist of appellant's position on appeal is that the district court erroneously failed to consider the claim of lack of notice of the Massachusetts termination proceedings contained in the second amended complaint. Indeed, the December 21, 1976 amendment alleged:

18. At no time was an evidentiary hearing held prior to the entry of the decree dispensing with Jay Blum's consent; and at no time was notice of any kind given or attempted to be given to Jay Blum of the [Massachusetts] Court's ...


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