State May Remove Man's Kids, But Man Can't Remove Case to Fed Court
In a case where the Tennessee Department of Children's Services sought to remove two children from their father, the father sought to remove the case to federal court. The removal of the children, and termination of parental rights, may well go ahead, but removal to federal court cannot, the Sixth Circuit ruled on Monday.
When the Department filed a petition to terminate Shaun Winesburgh's parental rights over his two children due to neglect and severe abuse, he claimed they were discriminating against him based on his mental disability and sought to remove the case to federal court. According to the Sixth, however, his federal counterclaims and invocation of civil rights removal provisions were insufficient to take his case out of state court.
Winesburg's Federal Claims
Winesburgh claims that he is mentally retarded and that the state was discriminating against him, in violation of the Americans with Disabilities Act, by attempting to remove his children. Winesburgh removed the case to federal court on the basis of his ADA claim and under 28 U.S.C. sec. 1443, which allows the removal of civil rights cases by any person denied equal rights in state court. The Department moved to remand, arguing that civil rights removal was inappropriate, since Winesburgh had made no claims relating to race, and that Winesburgh could not remove the Department's state-law-only claims by asserting a federal counterclaim.
The district court agreed and, on appeal, the Sixth Circuit refused to review the subject matter claims. Federal appellate courts highly restricted in their review of remanded removal cases, the court found. Where a district court relied upon subject-matter jurisdiction grounds to remand the case, appellate review is barred. But wait! That's not the end process. Under section 1443, the appellate court could review remand de novo.
1443 Only Applies to Race-Based Discrimination
Sadly for Winesburgh, 1443 provides no relief. Though the ADA is a civil rights act, Sixth Circuit precedent allows removal under 1443 only for civil rights related to racial equality. Since Winesburgh claimed only discrimination based on disability, he is stuck in state court.
Winesburgh had requested that the court ignore that precedent, which was established before the passage of the ADA. But even the Supreme Court precedent on 1443, also established before the ADA, limits the statute to race-based civil rights claims. Indeed, 1443 dates back to 1874 and was established explicitly to address race-based discrimination in state courts. Even if he had made a claim of racial discrimination however, Winesburgh still would not be allowed to remove his case under 1443, since he has not shown any denial of his civil rights.
Winesburgh is left with no choice but to press his ADA claims, and his parental rights, in Tennessee courts.
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