RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0152p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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NANCY KOVACIC; KATHERINE
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KOVACIC, a minor, by and through her
Mother, Nancy Kovacic, her guardian and -
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No. 08-4656
legal custodial parent; DANIEL KOVACIC,
,
>
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a minor, by and through his Mother, Nancy
Plaintiffs-Appellants, -
Kovacic, his guardian and custodial parent,
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v.
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CUYAHOGA COUNTY DEP’T OF CHILDREN
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AND FAMILY SERVICES; CUYAHOGA COUNTY,
OHIO; PATRICIA CAMPBELL PONSTINGLE; -
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N
PAM CAMERON; VIKKI CSORNOK; PAM
GAYLORD,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 05-02746—Sara E. Lioi, District Judge.
Argued: March 11, 2010
Decided and Filed: May 26, 2010
Before: MERRITT, COOK, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Kenneth D. Myers, LAW OFFICES, Cleveland, Ohio, for Appellants. Steven
W. Ritz, CUYAHOGA COUNTY PROSECUTOR’S OFFICE, Cleveland, Ohio, for
Appellees. ON BRIEF: Kenneth D. Myers, LAW OFFICES, Cleveland, Ohio, for
Appellants. Shawn M. Mallamad, CUYAHOGA COUNTY PROSECUTOR’S OFFICE,
Cleveland, Ohio, for Appellees.
1
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of Children and Family Services, et al.
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OPINION
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I.
MERRITT, Circuit Judge. Plaintiff, Nancy Kovacic, brought this action on behalf
of herself and her minor children claiming that their constitutional rights were violated when
social workers from the Cuyahoga Department of Children and Family Services, aided by
several North Olmsted police officers, entered her home by force and removed her two
children, Daniel and Katherine. The children were placed in the temporary custody of the
County and were not returned home for 10 months. Based on this conduct, plaintiffs claim
that defendants violated the United States Constitution and other federal laws, as well as
Ohio law. The primary bases for plaintiffs’ claims are that the social workers relied on false
information from third parties to effectuate the removal and that the subsequent juvenile
court proceedings concerning the removal failed to comport with due process. Plaintiffs also
claim that it was error for defendants not to obtain a warrant or other prior judicial approval
before removing the children from their mother’s custody. More than two and one-half years
elapsed between the removal of the children and the commencement of this action in federal
court.
The district court did not reach the merits of any of the claims. It found the mother’s
claims barred by the two-year statute of limitations in Ohio for Section 1983 actions and
state law tort claims. The district court then dismissed the children’s federal claims under
the Rooker-Feldman doctrine, finding that the alleged unlawful conduct of Family Services
and its social workers was “intertwined” with issues decided by the state-court, thereby
barring the district court from hearing the merits of the claims. The district court has not
made findings or conclusions on the merits of the constitutional claims, and we must review
the factual allegations in the light most favorable to plaintiffs.
Defendant police officers and the City of North Olmsted subsequently settled with
plaintiffs, leaving only Cuyahoga County and four social workers who work for the County
Department of Children and Family Services as parties to this appeal. The appeal raises two
No. 08-4656 Kovacic, et al. v. Cuyahoga County Dep’t Page 3
of Children and Family Services, et al.
main issues: (1) whether the district court erred in dismissing all of Nancy Kovacic’s claims
on statute of limitations grounds, and (2) whether the district court erred in finding it lacked
jurisdiction over the children’s claims under the Rooker-Feldman doctrine.
For the reasons discussed below, we affirm the judgment of the district court’s
dismissal of Nancy Kovacic’s claims on statute of limitations grounds. We remand the
children’s claims to the district court because their federal claims are not barred by Rooker-
Feldman and the district court has jurisdiction to hear their claims.
II.
Plaintiff, Nancy Kovacic, divorced her husband, Tom, in 1999. The couple have two
children, Katherine and Daniel, who are also named plaintiffs and were minors at the time
of their removal from their mother’s care in 2002. Nancy had sole legal custody of the
children at the time of their removal, but she and her husband were locked in a bitter custody
dispute. The Cuyahoga County Department of Children and Family Services and the North
Olmsted Police Department had involvement with the family over the years before the
removal of the children because Tom and Nancy had accused each other of physical abuse
of the children. In particular, after the divorce, Tom’s family, including his sister and father,
had called the police and Family Services complaining that Nancy was unstable, as well as
physically and mentally abusive to her children. Nancy disputes these allegations and claims
that Tom’s family made false accusations against her so that Tom could gain custody of the
children. At the time of the children’s removal, the family had been taking part in a county-
supervised intervention plan aimed at helping the family to work out problems without
violence and conflict.
On March 22, 2002, social worker Patricia Campbell Ponstingle, a defendant in this
case, scheduled a “staffing” meeting concerning the Kovacic situation for four days hence
– March 26, 2002. A staffing meeting is designed to address family issues in an informal
setting and explore possible counseling and therapeutic services available to troubled
families. The purpose of this meeting was to discuss specific allegations of physical and
emotional abuse occurring within the Kovacic family. One of the stated goals of the meeting
was to keep the family intact and there was no discussion or contemplation at that time of
No. 08-4656 Kovacic, et al. v. Cuyahoga County Dep’t Page 4
of Children and Family Services, et al.
removing the children from their mother’s care. The staffing meeting was allegedly
rescheduled for March 27, 2002, because, according to Family Services, Nancy could not
be present on the 26th. She disputes this and claims that she was called on March 26 and
told the meeting had been rescheduled to the next day. Whatever the case, Tom Kovacic,
1
his father Ed, his sister Colleen and three officers from the North Olmsted police
department showed up at Family Services on March 26 to participate in the staffing
meeting. The officers claim they were attending in response to subpoenas issued by
Tom Kovacic directing them to attend the meeting. Social worker Ponstingle testified
that she and her supervisors, Pam Cameron and Vikki Csornok, met with Tom, his
family members and the police as a “professional courtesy,” despite the fact that the
mother was not present.
During this meeting, Tom and his family members and the police told the social
workers that Nancy’s abuse and neglect toward the children was “escalating” and they
felt the children were in “imminent risk” of physical harm if they stayed with her. The
police officers present at the meeting told Family Services that the mother was acting
“more agitated” and “more prone to impulsive behavior” and had the potential to be
violent. They also pointed to six police reports concerning her, filed between 1995 and
February 28, 2002, a month before the meeting took place. The incidents primarily
concerned disputes between Nancy and her ex-husband Tom, or between Nancy and her
sister-in-law, Colleen. Based on these reported incidents, the officers stated their belief
that Nancy had the potential for violence. She claims all of these allegations are false
and each could have been rebutted or explained had she been given the opportunity to
do so.
The record reflects that based primarily on the information received from the
North Olmsted police officers and, to a lesser extent, the information from Tom Kovacic
and his relatives, Family Services determined that the children were at a “greater risk
1
Ms. Kovacic claims that the police in her community of North Olmsted were biased in favor
of Tom Kovacic and his family due to Ed Kovacic’s former position as Police Chief in neighboring
Cleveland.
No. 08-4656 Kovacic, et al. v. Cuyahoga County Dep’t Page 5
of Children and Family Services, et al.
level” and the danger to the children was more “imminent” than they first thought,
necessitating immediate removal of the children from their mother. With the approval
of her supervisors, Vikki Csornok and Pam Cameron, social worker Ponstingle procured
a Temporary Emergency Care Order, which provides legal authority for Family Services
to intervene as “officers of the court” and to bring the case immediately under the
Juvenile Court’s supervision. See O.R.C. § 2151.31. The Temporary Emergency Care
Order was authorized by a Standing Order signed by an Administrative Judge of the
Cuyahoga County Juvenile Court on December 13, 1988, 13 years prior to the removal
that instigated this lawsuit. The Standing Order, in conjunction with O.R.C. § 2151.31,
allowed County social workers to remove children temporarily from a parent’s custody
without a warrant or other prior judicial approval in situations where Family Services
reasonably believed the children faced “imminent risk” of harm. Pre- and post-removal
procedures were also included in the Standing Order to safeguard children and parents,
such as review of the removal order by a County Assistant Prosecuting Attorney familiar
with the case before removal to ensure that the removal met all legal requirements, and
the requirement of the filing of a Complaint for Temporary Custody by Family Services
by the next business day after removal, as well as a procedure for holding a “probable
cause for removal” hearing before a juvenile court magistrate within 72 hours of the
removal. See also O.R.C. § 2151.31.
The record reflects that the procedures outlined in the Standing Order and O.R.C.
§ 2151.31 were followed before the children were removed from their home and their
mother’s custody. Before obtaining a Temporary Emergency Care Order, Ponstingle
first discussed the safety factors and risk situation to the children with the assigned
assistant prosecuting attorney for Cuyahoga County, Cheryl Rice-Lane, who was then
required to determine whether the statutory standards, guidelines and mandates in place
had been met before signing the Temporary Emergency Care Order.
In possession of a valid Temporary Emergency Custody Order, Ponstingle and
social worker Susan Peavey, who was not a named defendant in the suit, following the
usual custom of their agency, asked the North Olmsted police for help in removing the
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of Children and Family Services, et al.
children from their mother’s home. Upon arriving at Nancy’s home, a North Olmsted
police officer attempted to persuade her to voluntarily let the police in, but she refused.
Defendants concede that the police “forced the front door in” to gain access to the
children. After police entered the house, social worker Ponstingle followed and Daniel
and Katherine were turned over to Family Services by their mother without further
incident. The children were taken to a local hospital for a routine examination, which
found no signs of abuse or neglect by the mother. Then the children were placed with
the husband’s side of the family, namely with Colleen Kovacic-Nola, Tom Kovacic’s
sister and the children’s aunt.
As required by Ohio law, a Complaint for Temporary Custody was filed the next
day, March 27, 2002, with the County Juvenile Court by an assistant prosecuting
attorney on behalf of Family Services. The Complaint sought temporary custody of the
children for the County based on abuse and neglect by both parents. See O. R. C.
§ 2151.353(A)(2) (authorizing Ohio's juvenile courts to award temporary custody of
neglected children to a public services agency). The affidavit accompanying the
Complaint was sworn by social worker Ponstingle, who acknowledged at her deposition
that the factual assertions in the affidavit were based on information given to her by the
North Olmsted police, Tom Kovacic, his sister, Colleen Kovacic Nola, and the children.
She did not conduct an independent investigation of the facts in the affidavit. Two days
later, on March 29, 2002, in accordance with Juvenile Court procedures, the Juvenile
Court, a division of the Court of Common Pleas of Cuyahoga County, conducted a
“shelter hearing.” A shelter hearing is emergency in nature and not intended to be a full
adjudication of rights, but instead a judicial review of whether Family Services had
probable cause to remove the children and place them in the temporary care of the
County. See O.R.C. § 2151.31. Nancy was present at the hearing and represented by
counsel, although neither she nor any of the witnesses she had brought was permitted to
testify. Social worker Ponstingle and two North Olmsted police officers testified.
Following the hearing, the presiding magistrate determined that the emergency removal
was justified. In re: Daniel and Katherine Kovacic, No. 0291-247/248, (Ct. of Common
No. 08-4656 Kovacic, et al. v. Cuyahoga County Dep’t Page 7
of Children and Family Services, et al.
Pleas, Juv. Ct. Div., Cuyahoga County, Mar. 29, 2002). The magistrate issued an order
granting temporary custody of the Kovacic children to Family Services based on a
finding of probable cause of imminent risk of child abuse and neglect. Id. The children
then spent 10 months in foster care under the custody of the County. No one appealed
or otherwise filed any written objections to this order. This action was filed more than
two and one-half years later.
The magistrate’s March 29 Order awarding temporary custody to the County is
appealable. In re Murray, 52 Ohio St. 3d 155, 556 N.E.2d 1169 (1990) (an adjudication
by a juvenile court that a child was dependent, followed by a disposition awarding
temporary custody to a public children services agency constituted a final, appealable
order). It is undisputed that Nancy did not appeal or file written objections to the
temporary custody order as was her right under Ohio law. Following an award of
temporary custody, the Juvenile Court, in conjunction with Family Services, is to try to
reunify the family or, if that cannot occur, issue an order of permanent custody.2 Two
hearings were held in August and October 2002, but there is no record or discussion of
what transpired. However, it is undisputed that the children were returned to their
mother’s custody in January 2003, so it is reasonable to assume that she was “reunified”
with her children. Upon motion by her, the complaint for temporary custody was
ultimately dismissed by the Lake County Juvenile Court (the county to which Nancy had
moved in the interim) on November 7, 2003. In re Kovacic Children, No. 2003-NG-
1481 (Ct. Comm. Pl., Juv. Div., Lake Cty., Ohio Nov. 7, 2003).
Nancy, individually and on behalf of her minor children, commenced an action
in state court on August 17, 2004, which was voluntarily dismissed by plaintiffs on
November 8, 2005. The federal suit on appeal here was filed in district court on
2
The relevant Ohio statute provides, in part, a “public children services agency . . . shall prepare
and maintain a case plan for any child to whom the agency is providing services;” this applies, for
example, when, as in this case, that agency has temporary custody of the child. O. R. C. § 2151.412(A)(2).
Day-to-day responsibility for that case plan’s management is in the hands of the caseworker. Id. at
§ 2151.416(B)(1). In such a situation, the agency preparing the case plan “shall attempt to obtain an
agreement among all parties, including, but not limited to, the parents, guardian, or custodian of the child
and the guardian ad litem of the child regarding the content of the case plan.” Id. at § 2151.412(D).
No. 08-4656 Kovacic, et al. v. Cuyahoga County Dep’t Page 8
of Children and Family Services, et al.
November 28, 2005, and then amended on March 17, 2006. The complaint asserts
federal claims pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985, including a claim for
a Fourth Amendment violation for illegal entry into the home; procedural and
substantive due process claims for wrongfully taking the children from the home and
keeping them from their mother; a liberty interest claim; a Monell claim for illegal entry
into the home and the removal of the children based on a municipal policy or custom
state claims. The state claims include presenting false information to county officials
with malicious purpose, in bad faith and with wanton or reckless disregard, civil
conspiracy, and intentional infliction of emotional distress.
Defendants moved for summary judgment on all claims, which was granted in
part and denied in part by the district court. Kovacic v. Cuyahoga Cty. Dep’t of Child.
and Fam. Servs., No. 1:05CV2746, 2007 WL 2027326 (N.D. Ohio July 9, 2007). The
district court dismissed all of the mother’s claims as barred by statutes of limitation. As
to the children’s claims, the district court found all but the Fourth Amendment claim for
illegal entry into the Kovacic home barred by the Rooker-Feldman doctrine. The district
court denied qualified immunity to social worker Patricia Campbell Ponstingle on the
illegal entry claim. Ponstingle filed an interlocutory appeal with this Court, which was
settled and subsequently dismissed. Order, No. 07-4005 (filed Oct. 24, 2008). During
the pendency of the interlocutory appeal, the parties reached a settlement in the district
court as to the children’s Fourth Amendment claims against the City of North Olmsted
and the police officers concerning the illegal entry and the claim was voluntarily
dismissed by plaintiffs. Notice of Dismissal (filed Feb. 22, 2008). The children did not
appeal the dismissal of their state law claims or the federal conspiracy claim. Therefore,
the only claims left on appeal are all of Nancy’s claims, which were dismissed on statute
of limitations grounds, and the children’s constitutional claims related to the alleged
unlawful removal.
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of Children and Family Services, et al.
III. Discussion
A. The District Court Correctly Ruled That All of Nancy Kovacic’s Claims Are Time
Barred
We review de novo the district court’s determination that Nancy untimely filed
her claims. Bonner v. Perry, 564 F.3d 424, 430 (6th Cir. 2009). To reach this
conclusion, the court enforced a two-year statute of limitations. Because neither party
challenges the court’s use of the two-year limitations period, we apply it here. See
United States v. Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006) (“[A]n appellant
abandons all issues not raised and argued in its initial brief on appeal[,]” and “it is a
settled appellate rule that [a party forfeits] issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation.”) (internal quotation marks
and citations omitted).
Nancy’s actions in both state and federal court were filed more than two and one-
half years after the children were removed. Her complaint in state court was filed
August 14, 2004; therefore, her claims must have accrued no earlier than August 14,
2002. The district court found that the last act that precipitated the alleged constitutional
violation occurred on March 29, 2002, when the juvenile court magistrate concluded that
there was probable cause for placing the children under the temporary care of Family
Services for abuse and neglect, an action from which no appeal or other judicial action
was taken for more than two years. Nancy disagrees with the district court, arguing that
any one of several later dates is the date on which her action accrued.
Generally, the statute of limitations begins to run when “the plaintiff knows or
has reason to know of the injury which is the basis of the action.” Kuhnle Bros., Inc. v.
County of Geauga, 103 F.3d 516 (6th Cir. 1997). The basis of Nancy’s lawsuit is the
unlawful removal of her children from her home on March 26, 2002. The defendants
contend that, at the latest, the last act that forms the basis for the claims in the complaint
occurred on March 29, 2002, when her children were put in the temporary care of the
County after the Juvenile Court hearing. Regardless of whether we use the March 26 or
March 29 date, the complaint filed by Nancy with the state court on August 17, 2004,
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of Children and Family Services, et al.
is well outside the two-year limitations period for all her claims and is, therefore,
untimely.
To counter the clear untimeliness of her complaint, Nancy contends that there
was a “continuing violation” of her rights each day that her children were out of her
custody and that the violation did not end until they were returned to her home in
January 2003, which would have given her until January 2005 to file a complaint.
Alternatively, she argues that her cause of action did not accrue until the Complaint for
Temporary Custody was dismissed by the Lake County court on November 7, 2003,
because until that order was filed she did not have full legal custody of her children
restored.
There is no need for extensive analysis on this issue. Nancy concedes that the
precipitating event in this action was the initial removal of her children from her custody
on March 26, 2002. A continuing violation in a § 1983 action occurs when there are
continued unlawful acts, not by continued ill effects from the original violation. McCune
v. The City of Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988). We have held in a
similar case that “mere inaction” on a temporary custody petition is not enough to find
a continuing violation. Eidson v. State of Tenn. Dep’t of Children’s Sevs., 510 F.3d 631,
637 (6th Cir. 2007).
As for the alternative argument that her claim did not accrue until it was
dismissed in November 2003, resolution of the claims in her complaint was not
dependent on a final determination of her custody case. If, as Nancy claims, the removal
was unlawful, it remained unlawful regardless of the final disposition of her case,
whether in her favor or not. While there was perhaps some chance that a federal court
would have abstained or held her case in abeyance pending final resolution of the state
custody case, this does not toll or otherwise change the date of the accrual of her claims
and she makes no tolling argument. We affirm the district court’s dismissal of all of the
claims brought by Nancy Kovacic.
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of Children and Family Services, et al.
B. The Claims by Daniel and Katherine Kovacic Are Not Barred by Rooker-Feldman
The district court held that the children’s claims were not time barred because
they were minors at the time of the events herein. The district court, however, found all
of the children’s claims barred by the Rooker-Feldman doctrine. We review de novo a
district court’s ruling that the Rooker-Feldman doctrine deprives the district court of
jurisdiction. McCormick v. Braverman, 451 F.3d 382, 389 (6th Cir. 2006). For the
following reasons, we disagree and remand to the district court the claims brought by the
children (except for the Fourth Amendment claim that was settled with the North
Olmsted police).
The Rooker-Feldman doctrine is based on two United States Supreme Court
decisions interpreting 28 U.S.C. § 1257(a).3 See District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
The statute is designed to prohibit end-runs around state court judgments that might
occur when parties go into federal court essentially seeking a review of a state-court
decision. To accomplish this, the statute states that “[f]inal judgments or decrees
rendered by the highest court of a State in which a decision could be had, may be
reviewed by the Supreme Court by writ of certiorari.” The Rooker-Feldman doctrine,
as it has become known, is based on the negative inference that, if appellate court review
of such state judgments is vested in the Supreme Court, then it follows that such review
may not occur in the lower federal courts.
3
28 U.S.C. § 1257(a) reads as follows:
Final judgments or decrees rendered by the highest court of a State in which a decision
could be had, may be reviewed by the Supreme Court by writ of certiorari where the
validity of a treaty or statute of the United States is drawn in question or where the
validity of a statute of any State is drawn in question on the ground of its being
repugnant to the Constitution, treaties, or laws of the United States, or where any title,
right, privilege, or immunity is specially set up or claimed under the Constitution or the
treaties or statutes of, or any commission held or authority exercised under, the United
States.
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of Children and Family Services, et al.
The Supreme Court recently revisited Rooker-Feldman in Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005). In Exxon, the Supreme Court
summarized the Rooker-Feldman doctrine this way:
The Rooker-Feldman doctrine, we hold today, is confined to cases of the
kind from which the doctrine acquired its name: cases brought by state-
court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting
district court review and rejection of those judgments.
Id. at 284. In the wake of Exxon, our Court, along with others, has tightened the scope
of Rooker -Feldman. See, e.g., Coles v. Granville, 448 F.3d 853, 857 (6th Cir. 2006)
(“Rooker Feldman is a doctrine with only limited application.”). In post- Exxon
analysis, we have distinguished between plaintiffs who bring an impermissible attack on
a state court judgment – situations in which Rooker-Feldman applies – and plaintiffs
who assert independent claims before the district court – situations in which Rooker -
Feldman does not apply. See, e.g., Pittman v. Cuyahoga Cnty. Dep’t of Children and
Fam. Sevs., 241 F. App’x 285 (6th Cir. 2007); McCormick v. Braverman, 451 F.3d 382,
393 (6th Cir. 2006); Todd v. Weltman, Weinberg, & Reis Co., L.P.A., 434 F.3d 432, 436-
37 (6th Cir. 2006) (holding Rooker- Feldman not triggered because the plaintiff did not
allege that he was injured by the state-court judgment, but instead filed an independent
federal claim that he was injured by the defendant’s filing of a false affidavit in the state-
court proceeding).
In McCormick, we explained that the pertinent inquiry after Exxon is whether the
“source of the injury” upon which plaintiff bases his federal claim is the state court
judgment, not simply whether the injury complained of is “inextricably intertwined”
with the state-court judgment:
The inquiry [focuses on] the source of the injury the plaintiff alleges in
the federal complaint. If the source of the injury is the state court
decision, then the Rooker-Feldman doctrine would prevent the district
court from asserting jurisdiction. If there is some other source of injury,
such as a third party’s actions, then the plaintiff asserts an independent
claim.
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of Children and Family Services, et al.
...
To the extent that Defendants argue that these claims, even though they
do not assert injury from the state court judgments, are “inextricably
intertwined” with those judgments so as to fall within the reach of
Rooker-Feldman, that argument must fail. We first note that it was this
exact language that was the source of the pre- Exxon Mobil woes as to
the application of Rooker-Feldman. In addition, the Supreme Court used
the phrase “inextricably intertwined” in Feldman to describe a claim
where the plaintiff asserted an injury from the state court judgment itself.
. . . In Exxon, the Supreme Court implicitly repudiated the circuits’ post-
Feldman use of the phrase “inextricably intertwined” to extend Rooker-
Feldman to situations [where] the source of the injury was not the state
court judgment. In short, the phrase “inextricably intertwined” only
describes the conclusion that a claim asserts an injury whose source is
the state court judgment, a claim that is thus barred by Rooker-Feldman.
451 F.3d at 394-95 (emphasis added). Applying this distinction, we concluded in
McCormick that the plaintiff’s claims that certain defendants committed fraud and
misrepresentation in the course of state probate proceedings did not allege an injury
caused by the state court judgment and thus were not barred by Rooker-Feldman. Id. at
392.
We applied the “source of the injury” analysis in a case with facts similar to this
one concerning the same defendant – Cuyahoga County Department of Children and
Family Services – involving a temporary custody proceeding in the juvenile court where
defendants argued that Rooker-Feldman barred the district court’s jurisdiction. In
Pittman v. Cuyahoga Cnty. Dep’t of Children and Fam. Sevs., 241 F. App’x 285 (6th
Cir. 2007), plaintiff brought claims of improper conduct by employees of a family
services agency that the district court found were barred by Rooker-Feldman. We
reversed, holding that plaintiff challenged defendants’ improper conduct in prohibiting
him from seeing his child, rather than the outcome of the state-court proceeding. Id. at
288.
Like the plaintiffs in this case, the plaintiff in Brokaw v. Weaver, 305 F.3d 660
(7th Cir. 2002), brought suit against defendants in the child neglect office based on a
conspiracy to take away her children. The Seventh Circuit held that Rooker-Feldman
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of Children and Family Services, et al.
did not bar her claims. Significantly, and similarly to the case at bar, Brokaw alleged
that “the defendants conspired – prior to any judicial involvement – to cause false child
neglect proceedings to be filed.” Id. at 665. The Seventh Circuit specifically held that
the plaintiff “is not merely claiming that the decision of the state court was incorrect or
that the decision violated her constitutional rights; rather, she is alleging that the people
involved in the decision to forcibly remove her from her home and her parents and
subject her to the custody of [child services] violated her constitutional rights,
independently of the state court decision.” Id. That is precisely what Daniel and
Katherine Kovacic have alleged herein.
As with the cases noted above, the children’s claims in this case do not seek
review or reversal of the decision of the juvenile court to award temporary custody to
the state, but instead focus on the conduct of Family Services and of the social workers
that led up to the juvenile court’s decision to award temporary custody to the County.
They seek compensatory damages for alleged unconstitutional conduct by a government
agency, not injunctive or other equitable relief, because any action concerning their
return to their mother’s custody became moot when they were reunited with their mother
in January 2003 and the Juvenile Court complaint was dismissed in 2005. The conduct
complained of primarily consists of Family Services’ alleged failure to undertake an
independent review of the situation before removing the children from the home and
triggering the Juvenile Court proceedings based on the uncorroborated and unverified
information from third parties received in an ex-parte, informal meeting.
Using the analysis from Exxon, we conclude that the district court erred in
relying on Rooker- Feldman when it declined to exercise jurisdiction over the case and
hear the merits of the children’s claims. The district court did not mention the Supreme
Court’s decision in Exxon and its “source of the injury” test, and it may be that the
parties did not call the district court’s attention to the case. Instead, the court below
looked to whether the state-court judgment was “intertwined” with issues raised in the
federal complaint.
No. 08-4656 Kovacic, et al. v. Cuyahoga County Dep’t Page 15
of Children and Family Services, et al.
For the foregoing reasons, the judgment of the district court as to the federal
constitutional claims by Daniel and Katherine Kovacic is reversed and remanded to the
district court for proceedings consistent with this opinion. As to plaintiff Nancy
Kovacic, we affirm the judgment of the district court in dismissing all of her claims.