United States District Court, N.D. New York
JEFFREY PITRE, SR. and AWENHA PITRE, Individually and on behalf of their children DP, SK, DP, SP, EP and JP, Plaintiffs,
LORRIE A. SHENANDOAH; JAMES DOOLEY; ONONDAGA SOCIAL SERVICES DEPARTMENT; OSWEGO SOCIAL SERVICES DEPARTMENT; and ONONDAGA NATION, Defendants.
OFFICE OF LISA H. BLITMAN, LISA H. BLITMAN, ESQ., Attorneys for Plaintiffs, New York, NY.
GORDON J. CUFFY, Onondaga County Attorney, KAREN ANN BLESKOSKI, ESQ., Deputy County Attorney Attorneys for Defendant Onondaga Social Services Department Syracuse, NY.
THE LAW FIRM OF FRANK W. MILLER, FRANK W. MILLER, ESQ., WILLIAM J. HATHAWAY, ESQ., Attorneys for Defendant Oswego Social Services Department.
OFFICE OF JOSEPH J. HEATH, JOSEPH J. HEATH, ESQ., Attorneys for Defendants Onondaga Nation and Shenandoah Syracuse, NY.
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, District Judge.
On March 18, 2014, plaintiffs Jeffrey and Awenha Pitre ("Jeffrey" and "Awenha"), proceeding pro se, initiated this action on their own behalf and on behalf of their six minor children, "D.P., " "S.K., " "D.P., " "S.P., " "E.P., " and "J.P." This action stems from the June 2012 removal of the minor children by defendants Oswego Social Services Department ("Oswego SSD") and Onondaga Social Services Department ("Onondaga SSD"), the later transfer of custody proceedings to defendant Onondaga Nation, and the placement of the children with defendants Lorrie A. Shenandoah ("Shenandoah") and James Dooley ("Dooley").
Although they do not delineate any specific causes of action, plaintiffs appear to assert a federal substantive due process claim, brought pursuant to 42 U.S.C. § 1983, alleging that defendants "wrongfully hold custody of the Children in violation of the Mother and the Father's state and federal constitutional rights and in violation of New York State law." Compl. ¶ 15. Plaintiffs seek compensatory and punitive damages as well as declaratory and injunctive relief, including an order directing the immediate return of the children to their care and custody.
On July 22, 2014, the Onondaga Nation and Shenandoah filed a motion to dismiss the complaint. Onondaga SSD and Oswego SSD have each filed a motion to dismiss as well. Plaintiffs oppose all three motions and have filed a cross-motion seeking leave to file an amended complaint. The motions are all fully-briefed and were considered on submit, without oral argument.
II. FACTUAL BACKGROUND
The following facts, taken from the complaint and documents incorporated by reference therein, are assumed true for purposes of the motions to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
Jeffrey and Awenha were married in June 1998 and reside in Phoenix, New York. They have six biological children together. Jeffrey is not a Native American. Awenha is a Native American but left the Onondaga Nation reservation at age sixteen and has not been a part of that tribe since. The children are part-Native American but are not part of the Onondaga Nation or any other recognized tribe. The family residence is not on Indian land.
The Pitre family became the subject of a child abuse/neglect investigation on June 25, 2012, when one of the minor daughters alleged that Jeffrey and Awenha sexually abused her. As a result, Jeffrey and Awenha-who was seven-months pregnant at the time-were arrested, criminally charged, and jailed. The children were removed from Jeffrey and Awenha's custody by Oswego SSD. Four of the children-D.P., S.K., D.P., and S.P.-were placed with Shenandoah, Awenha's aunt. E.P. was placed with Dooley, the husband of Awenha's sister. Shenandoah and Dooley are Onondaga Nation foster parents. Onondaga SSD helped facilitate these placements. Oswego SSD commenced a child abuse/neglect proceeding in Oswego County Family Court on July 10, 2012.
The allegedly victimized daughter subsequently recanted her allegations of sexual abuse. The criminal charges against both parents were dismissed in January 2013. The child abuse/neglect case with Oswego SSD was similarly closed on January 25, 2013. The Oswego County Family Court issued an order on February 6, 2013, terminating the placement of the children as the proceedings were transferred to the jurisdiction of the Onondaga Nation. See Heath Affirmation, Ex. A, ECF No. 12-4.
In 2013, Dooley and Shenandoah initiated separate "family-offense" proceedings seeking orders of protection against Jeffrey and Awenha in Onondaga County Family Court. The Family Court dismissed Dooley's action on June 11, 2013, and Shenandoah withdrew her proceeding on December 11, 2013. In August 2013, Jeffrey filed a petition for custody of the children in Onondaga County Family Court. In March 2014, the Onondaga Nation filed a motion to dismiss Jeffrey's petition. The parties report that the Onondaga County Family Court granted the Nation's motion to dismiss on August 11, 2014. The Family Court noted that it lacked jurisdiction over the child custody proceeding.
D.P., S.K., D.P., and S.P. currently reside with Shenandoah. E.P. currently resides with Dooley. Custody of the children was formally transferred to the foster parents through proceedings before the Onondaga Nation and pursuant to ICWA. Plaintiffs dispute the applicability of ICWA. They allege that there is no valid court order or other legal ...