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Andrew Mcdonald, On Behalf of D.M v. Amy Jones and Greg Phillips

January 13, 2011

ANDREW MCDONALD, ON BEHALF OF D.M.,
PLAINTIFF,
v.
AMY JONES AND GREG PHILLIPS, OF THE ERIE COUNTY OFFICE OF CHILDREN AND YOUTH,
DEFENDANTS.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.

MEMORANDUM OPINION

Plaintiff, Andrew McDonald ("Plaintiff"), who is preceding pro se , filed suit on July 30, 2009 against Amy Jones, the solicitor for the Erie County Office of Children and Youth ("OCY") and Greg Phillips, an OCY caseworker ("Defendants"), seeking to enjoin state court adoption proceedings based on an alleged improper denial of his paternity rights. Presently pending before the Court is the Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). *fn1

I. BACKGROUND

D.M. is the son of S.H. See Plaintiff's Brief [Doc. No. 18] Ex. G, Memorandum of Law p. 1. Based upon S.H.'s alleged drug use, the Erie County Court of Common Pleas ordered that D.M. be placed in foster care upon his birth. See Complaint [Doc. No. 2]; Plaintiff's Brief [Doc. No. 21], Ex. B, In the Matter of the Adoption of D.A.M., 376 WDA 2009 (Pa. Super. May 5, 2010) p. 4. OCY filed a dependency petition with regard to D.M., and the Plaintiff appeared at the detention hearing and asserted a claim of paternity. Plaintiff's Brief [Doc. No. 18] Ex. G, Memorandum of Law p. 2. In support of his paternity claim, the Plaintiff and S.H. completed a voluntary "Acknowledgement of Paternity" form, and forwarded same to the Pennsylvania Department of Vital Statistics. Plaintiff's Brief [Doc. No. 18], Ex. D, Motion for Emergency Relief -¶-¶ 3-4. Thereafter, the Plaintiff was listed as the legal father of D.M. on the child's birth certificate. Id. at -¶ 10; Ex. I, Certificate of Birth.

Plaintiff subsequently filed a motion to dismiss the dependency proceeding, and on December 4, 2007, Erie County Court of Common Pleas Judge John Garhart entered the following order:

1. The Motion to Dismiss is DENIED. Mr. McDonald cannot establish paternity of the child in question by filing an acknowledgment of paternity. The law does not recognize that this is a valid way to establish paternity when the mother of the child is married to someone else. This Rule is not changed by Mr. McDonald's assertion that the husband did not have access to the mother during the period of conception. An acknowledgment of paternity is valid only when the mother of the child is unmarried. Since this is not the case, the Motion to Dismiss is denied.

2. Having denied the Motion to Dismiss, we will require Mr. McDonald to establish paternity by a blood test. This is in the process and the Court will await the results.

3. Mr. McDonald will be permitted to participate in the instant action because he is under consideration as the possible Father of the child. But he will not be given any access to the Court's files concerning [S.H.] or any matter that occurred in Court in other cases before the inception of this particular case. If he is determined not to be the Father, his access to the file will cease immediately. If he is determined to be the Father, he will have formal standing.

4. Determination of paternity by blood testing is ongoing. We anticipate results shortly. Until this is established, the Court is NOT going to grant visitation in any fashion with the child.

Defendants' Ex. A [Doc. No. 14], In the Matter of D.M., Case No. CP-25-JV-1404-2007, Order of Judge Garhart. By Order dated December 17, 2007, Judge Garhart denied the Plaintiff's objection to paternity testing stating: "If Mr. McDonald wishes to contest the Court's Orders, he may do so by filing an appeal." Plaintiff's Response [Doc. No. 21] Ex. D. *fn2 Plaintiff did not, however, appeal this order.

On February 13, 2008, Erie County Court of Common Pleas Judge William R. Cunningham entered an Order rescinding the Acknowledgement of Paternity form based upon fraud and material mistake of fact. Defendant's Brief [Doc. No. 9], Ex. B, Order of Judge Cunningham. Plaintiff thereafter filed a Motion for Emergency Relief, claiming that the Acknowlegement of Paternity established "conclusive evidence" of paternity and requested that D.M. be placed in his custody. Plaintiff's Brief [Doc. No. 18] Ex. D, Motion for Emergency Relief -¶-¶ 12; 20. Following a hearing on the Motion, Erie County Court of Common Pleas Judge Elizabeth Kelly issued an Order denying the Plaintiff's motion. Plaintiff's Brief [Doc. No. 21] Ex. E, Order of Judge Kelly. No appeal was taken from that Order.

On May 8, 2008, the state trial court granted OCY's request that D.M. be placed for adoption. Defendant's Brief [Doc. No. 21] Ex. B, In the Matter of the Adoption of D.A.M., 376 WDA 2009 (Pa. Super. May 5, 2010) p. 5. OCY thereafter filed a petition to terminate the parental rights as to D.M., and on December 15, 2008 Judge Cunningham terminated S.H.'s parental rights. Defendant's Brief [Doc. No. 21] Ex. B, In the Matter of the Adoption of D.A.M., 376 WDA 2009 (Pa. Super. May 5, 2010) pp. 5; 7. This decision was affirmed by the Superior Court of Pennsylvania on May 5, 2010. Defendant's Brief [Doc. No. 21] Ex. B, In the Matter of the Adoption of D.A.M., 376 WDA 2009 (Pa. Super. May 5, 2010).

In his federal Complaint, the Plaintiff invokes this Court's jurisdiction on the grounds that "the lower [state] court refused to follow the rule of law/uniform parentage Act (sic) ... [d]enying Mr. McDonald's Constitution[al] right to be with his child." See Complaint [Doc. No. 2]. *fn3 He alleges that the Defendants acted improperly in opposing his claim of paternity by falsely claiming that he had a "long criminal history" which caused the state court to order paternity testing. Id. Plaintiff further alleges that under "Federal and State Laws" his voluntary Acknowledgement of Paternity was valid without the need for genetic testing. Id. Plaintiff contends that he has been deprived of the custody of his child and suffered "grievous loss" that "deserves extensive due process protection." Id. As relief, the Plaintiff requests that this Court enjoin any adoption proceedings relative ...


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