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Hixson v. Gottschalk

United States District Court, N.D. Indiana, South Bend Division

October 26, 2017

STEPHANIE GOTTSCHALK et al., Defendants.



         This case arises out of a child custody determination made by the Superior Court of Wabash County, Indiana depriving Plaintiffs Janet Pichon Hixson and Richard Hixson of custody of Mrs. Hixson's two children. It's pretty obvious that the Hixsons are deeply disappointed with what took place in state court. Indeed, they previously sued the state trial judge but I dismissed that action. See Hixson et al. v. McCallen, Cause No. 3:17-cv-6-PPS-MGG (N.D. Ind. Apr. 13, 2017), DE 16. The Hixsons have returned to court, this time bringing an action against seven named defendants and ten John Does for the alleged violation of their federal and statutory rights. Each defendant was somehow involved in the state court custody matter. The Hixsons cast this suit as both a civil rights matter and a violation of state laws including abuse of process, negligence, malicious prosecution, perjury, conspiracy, official misconduct, defamation, and intentional infliction of emotional distress.

         There is a fundamental problem with this case, and it's where all cases must begin: subject matter jurisdiction. The Rooker-Feldman doctrine deprives me of jurisdiction over this case because, quite simply, what the Hixsons are attempting to address with this litigation is the harm done to them by the state court judgment denying them custody of Mrs. Hixson's children. This is the precisely the type of action that Rooker-Feldman is meant to bring to a halt. This case must be dismissed for lack of jurisdiction. There is, however, one claim that may have legs but the Hixsons will need to amend their complaint to make that claim viable.


         For purposes of a motion to dismiss, I will take all facts as alleged in the complaint as true. Plaintiff Janet Hixson and Defendant Doyle Silvers were married from September 1999 to June 2007. [DE 1 at ¶ 14.] The couple had two children: Alvin “Lamoine, ” age 16, and Lyndzy, age 12. [Id.] The relationship between Mrs. Hixson and Mr. Silvers went sour and they became embroiled in a bitter divorce and child custody dispute. It's a sad story all around. Indeed, the state trial judge concurred with the Guardian Ad Litem that “Doyle and Janet present the most dysfunctional parenting the Court has ever seen.” [DE 34-2 at 1.]

         On August 7, 2009, Janet Hixson was awarded full custody of both children. [Id. at ¶ 16.] By the time this decision was rendered, Janet had moved to North Carolina and remarried in April 2009 to a man named Richard Hixson. [Id. at ¶ 15.] During the initial period of full custody, the children's father, Mr. Silvers, filed yearly child abuse claims against Janet Hixson with both Mecklenburg County, North Carolina and Wabash County, Indiana. [Id. at ¶ 17.] Mecklenburg County Child Protective Services investigated each complaint and concluded that the Hixson home was a safe and healthy environment for the children. [Id.]

         The allegations regarding what happened next are somewhat unclear. Evidently, during the Summer of 2013, the children were back in Indiana for a visit with their dad, Doyle Silvers. Silvers refused to return the kids to North Carolina and instead went to state court in Indiana requesting custody of the children because they were allegedly being abused by the Hixsons in North Carolina. [Id. at ¶ 20.] Whether this was an honest effort to save his children from harm or an effort to have the ensuing custody battle with his ex-wife on his home turf is unclear. In any event, what occurred in state court in Wabash County, Indiana is what this case is now about.

         Before getting into the details of what the Hixsons claim, let's identify the defendants and what their respective roles were in the state court proceeding. The Hixsons have sued Silvers, Mrs. Hixson's ex-husband and the father of the two children at the center of the state court proceeding. They also have sued Roberta Fansler. She was the Court Appointed Special Advocate assigned to Janet Hixson's custody case. Three other defendants work for the Wabash County branch of the Indiana Department of Child Services. Margery Justice was the supervisor of the office at the relevant time and there were two case managers assigned to the case-Ryan Jacobs and Gina Cole. They all have been included as defendants in this action. Another defendant is Ed Pereira, a social worker assigned to provide counseling to both of the children. The Hixsons also have their sites on Stephanie Gottschalk, the court appointed guardian ad litem (“GAL”). It was Ms. Gottschalk who recommended that the children's father be awarded temporary custody. [DE 1 at ¶ 27.] Finally, there is one other defendant whose role is ill-defined. His name is Evan Hammond and evidently, at some point in time while the nasty dispute between Mr. Silvers and Mrs. Hixson was ongoing, he came into possession of a tape recording of Mrs. Hixson having an argument with her current husband. The allegations are murky, but the gist of it is that the recording made its way to the state court judge in Wabash County who relied upon it in part to grant custody of the children to Mr. Silvers. [Id. at ¶¶ 76-80].

         Matters came to a head at a September 2014 hearing in state court. According to the complaint in this case, it was at this hearing that Gottschalk, the GAL, recommended that Silvers be awarded temporary custody. [Id. at ¶ 27.] The Hixsons allege that Gottschalk admitted there was no actual evidence of child abuse or domestic violence in their home in Charlotte, North Carolina, but nevertheless believed that “something was going on.” [Id.] Initially, Gottschalk recommended unsupervised visitation with the Hixsons but soon changed her story and claimed that the children were in imminent danger when around Richard Hixson. [Id. at ¶ 28.] The Hixsons allege that Gottschalk further abused her governmental power by offering to restore Janet Hixson's full custody if she left her husband. [Id. at ¶¶ 30, 33.] The Hixsons further allege that at Gottschalk's request, Judge Geoff of the Wabash Superior Court issued a no-contact order between Richard and the children without the presence of Hixsons or a hearing in December 2014. [Id. at ¶ 35.]

         For reasons unexplained in the Complaint, in April 2015, Judge McCallen, Special Judge of the Wabash Superior County assigned to this case, placed the children in foster care and issued a no-contact order between the children and both parents. [Id. at ¶ 42.] The period of no-contact lasted from April 10, 2015 to June 9, 2015. [Id.] The Hixsons allege that Silvers violated the order and secretly met with the children to coerce the children's testimony. [Id. at ¶¶ 43, 100.] The Hixsons now claim that the Defendants have relied on this coached testimony to support any recommendation to deny the Hixsons contact with the children. [Id. at ¶¶ 44, 92.] In fact, the Hixsons allege that their son, Lamoine, has stated that he does not fear his stepfather and wishes to have contact with him. [Id. at ¶¶ 34, 54.] Mrs. Hixson can see her children during supervised visits many of which allegedly have been cancelled or denied. [Id. at ¶¶ 30-32, 92.]

         The Hixsons allege that Defendants Doyle Silvers and Stephanie Gottschalk “deliberately engaged in the children's alienation from Janet and Richard.” [DE 1 at ¶ 47.] Gottschalk represented to the state court that the children preferred, and their well-being required, no contact with the Hixsons. [Id. at ¶ 88.] The Hixsons allege that Gottschalk's recommendations to Judge McCallen are unsupported and have caused “irreparable harm not only to Janet but to her children as well.” [Id. at ¶¶ 88-89.] They allege that Gottschalk makes accusations of child abuse without evidence other than her “feeling [that] something is not right.” [Id. at ¶ 94.]

         The Hixsons further allege that Defendants Gina Cole, Case Manager of the Indiana Department of Child Services, and Margery Justice, Supervisor of the Indiana Department of Child Services, withheld evidence from the court and created “false and misleading reports” to prevent Mrs. Hixson from regaining custody or restoring visitation rights with her children. [Id. at ¶ 66.] Specifically, the Hixsons allege that Gina Cole withheld the results of Silvers' psychological evaluation that indicated he was at risk of child abuse and neglect. [Id. at ¶¶ 58, 63.] The Hixsons also allege that Cole neglected to provide to the state court judge the Department of Child Services (“DCS”) intake interviews of the children expressing concern for their father's stability and describing instances of abuse. [Id. at ¶ 52.] The Hixsons also allege that Cole refused to cooperate with service providers in Charlotte, thus preventing Janet from completing her court ordered assessments. [Id. at ¶ 101.] Cole then turned around and used Janet Hixson's noncompliance to recommend permanent placement with Silvers. [Id. at ¶¶ 109-10.] Even though reunification was the court's goal, the Defendants continue to insist that living in the Hixsons' home would not be in the best interest of the children. [Id. at ¶ 61.]

         There's more: the Hixsons allege that Roberta Fansler, the Court Appointed Special Advocate assigned to Janet Hixson's custody case, failed to contact and listen to concerns of several friends, relatives, and teachers with whom Mrs. Hixon wanted her to speak [DE 1 at ¶¶ 124-127.] The Hixsons claim that Fansler erroneously listened to the direction of Gottschalk, who instructed her not to follow up. [Id.]

         Finally, as referenced above, the Hixsons allege that Defendants Evan Hammond and/or Doyle Silvers provided an illegal tape recording of a private argument to Defendants Gottschalk, Cole, and Pereira. [Id. at ¶ 78.] How they got such a recording is entirely unclear. The Hixsons say that a subsequent lawsuit followed and allegedly was settled, the details of which the Hixsons tell me cannot be discussed. [Id. at ¶ 76.] According to the Hixsons, Defendant Gottschalk impermissibly gave a copy of this tape to Judge McCallen. [Id. at ...

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