STRONG v. LEE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Asia Shaneen Strong, appeals from two Superior Court judgments dismissing her related complaints -- one filed against Patricia Lee (the children's grandmother) and Clemencia M. Lee (the children's paternal great aunt and foster mother), and the other filed against Clemencia,³ Patricia, the Department of Children and Families (department), Linda S. Spears (commissioner of the department), Susan Walewicz, and the Law Office of Christine M. Bonardi. In her complaints, Strong alleged fraud, kidnapping, and a failure to return to her sole legal and physical custody of her children. Both of Strong's complaints were dismissed for failure to state a claim for which relief could be granted, and for lack of subject matter jurisdiction in the Superior Court over issues of child custody, care, and protection. We affirm.

Background. On October 9, 2015, the department filed in the Juvenile Court a care and protection petition regarding Strong's two minor children;⁴ temporary custody was awarded to the department. A short time later, the children were placed in foster care with Clemencia, a licensed foster caregiver, where they have remained. In August 2017, Strong stipulated that the department would have permanent legal custody of the children.

In November 2017, Strong filed her first complaint against Patricia and Clemencia, alleging fraud and kidnapping, and seeking pain and suffering damages in the amount of $270,000; in the body of the complaint, multiple police incident reports were listed but no specific factual allegations were included. Strong orally opposed the dismissal of her complaint at a hearing on Clemencia's motion; however, the complaint was dismissed for a failure to state a claim and lack of subject matter jurisdiction. Patricia did not appear at the hearing, but the complaint as against her was dismissed for a lack of proper service. Strong timely appealed from that dismissal as well.

In March 2018, Strong filed her second complaint against all of the defendants; the complaint caption stated that the action was brought for “failure to return sole legal & physical custody of [her] 3 biological daughters.” Strong again failed to provide any factual allegations, but sought damages of $5.6 million. The Attorney General filed a motion to dismiss on behalf of the defendants (except for Patricia). As with the first complaint, Strong's second complaint was dismissed in its entirety after the motion was allowed, without opposition, for failure to state a claim and for lack of subject matter jurisdiction. Strong again timely appealed. On December 3, 2018, the appeals were consolidated in this court.

Discussion. Strong appeals from the judgments dismissing her complaints. In reviewing the allowance of a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), “we accept as true all factual allegations of the complaint and any such reasonable inferences as may be drawn therefrom in the plaintiff['s] favor.” Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). “The ultimate inquiry is whether the plaintiff[ ] alleged such facts, adequately detailed, so as to plausibly suggest an entitlement to relief.” Id., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). “We review the allowance of a motion to dismiss de novo.” Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 17 (2018).

Here, neither of Strong's complaints presented a cognizable cause of action or factual allegations that would entitle her to the relief sought. See Iannacchino, 451 Mass. at 636. See also Mass. R. Civ. P. 8 (a) & (e), 365 Mass. 749 (1974). In her first complaint, alleging fraud, Strong was required to aver with particularity the essential elements of such a claim; she failed to do so. See Balles v. Babcock Power, Inc., 476 Mass. 565, 573 (2017). See also Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974). In asserting a claim for “kidnapping” (or, as the judge found, intentional interference with the parental relationship), Strong likewise failed to set forth any factual allegations as to Clemencia's or Patricia's conduct going to the elements of that “tort,” especially in light of the fact that the department had legal custody of her children.⁵

In her second complaint, Strong again failed to provide the factual allegations necessary to bring a claim for the return of her children to her custody. Also, the judge lacked subject matter jurisdiction to the extent that Strong's second complaint attempted to challenge the custody or care of her children; the Superior Court lacks jurisdiction over such claims. See G. L. c. 119, § 24 (procedure brought in Juvenile Court to commit child to department custody or other disposition). Cf. A.T. v. C.R., 88 Mass. App. Ct. 532, 538-539 (2015) (“Juvenile Court [has] exclusive jurisdiction over G. L. c. 258E orders directed at juveniles”).

Based on the foregoing, we see no abuse of discretion in the allowance of the defendants' motions to dismiss. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Judgments affirmed.

FOOTNOTES

3.   Because two of the defendants share the same last name, we refer to them by their first name for ease of reference.

4.   Walewicz served as counsel for the department. Bonardi was the children's appointed counsel.

5.   In addition, the claims brought in both complaints against Clemencia were subject to dismissal for a lack of proper service, as copies of the complaints were left at an address where Clemencia did not reside, and no return of service was filed with the court as required. See Mass. R. Civ. P. 4 (d) (1), as amended, 370 Mass. 918 (1976); Mass. R. Civ. P. 12 (b) (5), 365 Mass. 754 (1974).