Dumont v. Lyon

• Decision Date: 14 September 2018
• Docket Number: Case No. 17-cv-13080
• Citation: 341 F.Supp.3d 706
• Parties: Kristy DUMONT; Dana Dumont; Erin Busk-Sutton; Rebecca Busk-Sutton; and Jennifer Ludolph, Plaintiffs, v. Nick LYON, in His Official Capacity as the Director of the Michigan Department of Health and Human Services ; and Herman McCall, in His Official Capacity as the Executive Director of the Michigan Children's Services Agency, Defendants, and St. Vincent Catholic Charities, Melissa Buck, Chad Buck, and Shamber Flore, Intervening Defendants.
• Court: U.S. District Court — Eastern District of Michigan

341 F.Supp.3d 706

Kristy DUMONT; Dana Dumont; Erin Busk-Sutton; Rebecca Busk-Sutton; and Jennifer Ludolph, Plaintiffs,

v.Nick LYON, in His Official Capacity as the Director of the Michigan Department of Health and Human Services ; and Herman McCall, in His Official Capacity as the Executive Director of the Michigan Children's Services Agency, Defendants,andSt. Vincent Catholic Charities, Melissa Buck, Chad Buck, and Shamber Flore, Intervening Defendants.

Case No. 17-cv-13080

United States District Court, E.D. Michigan, Southern Division.

Signed September 14, 2018

Ann-Elizabeth Ostrager, Garrard R. Beeney, Jason W. Schnier, Ryan D. Galisewski, Sullivan & Cromwell LLP, Leslie Cooper, ACLU Foundation, New York, NY, Daniel Mach, American Civil Liberties Union, Washington, DC, Michael J. Steinberg, Jay Kaplan, American Civil Liberties Union Fund of Michigan, Detroit, MI, for Plaintiffs.

John J. Bursch, Bursch Law PLLC, Caledonia, MI, Jonathan S. Ludwig, Joshua S. Smith, MI Dept. of Attorney General, William J. Perrone, Dykema Gossett, Lansing, MI, Daniel Ortner, Mark L. Rienzi, Stephanie H. Barclay, Becket Fund for Religious Liberty, Washington, DC, for Defendants and Intervening Defendants.

OPINION AND ORDER DENYING IN LARGE PART DEFENDANTS' MOTIONS TO DISMISS (ECF NOS. 16 AND 19), AND JUST DISMISSING THE CLAIMS OF PLAINTIFF LUDOLPH FOR LACK OF STANDING

PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

Plaintiffs filed their 42 U.S.C. § 1983 Complaint challenging Defendants Nick Lyon (sued in his official capacity as the Director of the Michigan Department of Health and Human Services "DHHS") and Herman McCall's (sued in his official capacity as the Executive Director of the Michigan Children's Services Agency "CSA") practice of permitting state-contracted and taxpayer-funded child placing agencies to use religious criteria to screen prospective foster and adoptive parents for children in the foster care system. Plaintiffs are prospective adoptive same-sex couples and individuals who have contacted certain faith-based Michigan adoption agencies and, based upon their same-sex status, been denied the state-contracted-for services to process their papers necessary for consideration for child placement by all adoption agencies. Plaintiffs allege that the refusal of these faith-based agencies to consider them as prospective adoptive parents violates their rights protected by the Establishment Clause of the First Amendment to the United States Constitution and also violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs seek a declaratory judgment that these practices violate the First and Fourteenth Amendments and seek an Order enjoining Defendants Lyon and McCall, in their official capacities, from contracting with or providing taxpayer funding to private child placing agencies that exclude same-sex couples from consideration as foster or adoptive parents or otherwise employ religious criteria in the screening of prospective foster and adoptive parents.

The Court has granted the motions of the Intervenor Defendants, St. Vincent Catholic Charities, Melissa Buck, Chad Buck, and Shamber Flore to intervene in this action. (ECF Nos. 31, 34.) The State Defendants and the Intervenor Defendants now move to dismiss the Plaintiffs' Complaint. (ECF Nos. 16, 19.) The Court also accepted and has considered (as appropriate to the stage of proceedings) the Group of 53 Michigan Legislators' Amicus Brief. (ECF No. 26.) The Court held oral argument on July 12, 2018, on both motions to dismiss. For the reasons that follow, the Court DENIES Defendants' motions to dismiss except that the Court GRANTS the motion to dismiss Plaintiff Jennifer Ludolph's claims for lack of standing.

I. FACTUAL BACKGROUND¹

Plaintiffs allege that the DHHS is responsible for the approximately 13,000 children who are in the State's foster care system because they have been removed from their families by the State due to abuse or neglect or otherwise have become wards of the State. The State is responsible for finding these children appropriate foster and adoptive families to care for them. (Compl. ¶ 2.) According to the allegations of the Complaint, the DHHS contracts out public adoption and foster care services to private agencies and pays these agencies with taxpayer funds to perform this government function. Some of these agencies refuse to accept prospective families headed by same-sex couples or to place children with families headed by same-sex parents based upon the agency's religious beliefs. DHHS has not prevented the agencies from engaging in this conduct. (Compl. ¶ 3.)

Plaintiffs Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton are two prospective adoptive families that were turned away by state-contracted and taxpayer funded child placing agencies based on those agencies' religious objections to same-sex couples. Plaintiffs allege that these couples are ready, willing, and able to provide a "forever family" to children in the foster care system. Plaintiff Jennifer Ludolph was in the Michigan foster care system when she was a teenager and, as a taxpayer, she objects to taxpayer dollars funding child-placing agencies that turn away qualified families because of the agencies' religious objections to those families. The Complaint alleges that all Plaintiffs are Michigan taxpayers who object to their taxpayer dollars being used to pay for public child welfare services that are provided based on religious standards rather than professional child welfare standards and object to the use of taxpayer funds to underwrite and endorse religious beliefs to which they do not subscribe. Plaintiffs allege that their claims concern only the State's provision of taxpayer-funded government services based on religious and discriminatory criteria and do not challenge any private agency's provision of private adoption services or use of non-public funds. (Compl. ¶¶ 5-8.)

A. Plaintiffs' Allegations Regarding Michigan's Child Welfare System

According to the allegations of the Complaint, in a typical case the state Child Protective Services removes a child from a home for abuse or neglect and a court orders that the child be placed into foster care. If a child ultimately cannot be reunited with his or her parents and parental rights are terminated, DHHS seeks to find a permanent family for the child, typically through adoption. DHHS's responsibilities for such children include recruiting and identifying appropriate families to care for the children, either temporarily as foster parents or permanently as adoptive families. According to the allegations of the Complaint, DHHS performs this public function in part by contracting with private agencies that are licensed by DHHS's Division of Child Welfare Licensing ("DCWL") as "child placing agencies" to recruit, screen, train, and license prospective foster and adoptive parents and to place children in appropriate foster or adoptive homes, as authorized by Michigan statute, Mich. Compl. Laws §§ 722.11(1)(c), 722.115(3), 722.922. Plaintiffs allege that, although DHHS retains ultimate supervisory responsibility in all cases, much of the on-the-ground foster care and adoption work is performed by taxpayer-funded child placing agencies. (Compl. ¶¶ 24-25.)

Plaintiffs allege that through rulemaking authorized by statute, DHHS has conferred authority on child placing agencies to make decisions regarding licensing foster parents and certifying adoptive parents, as well as placement of children into foster and adoptive homes. According to the allegations of the Complaint, child placement agencies have an obligation to maintain ongoing recruitment programs "to ensure an adequate number of suitable and qualified homes" to meet the needs of the children served by the agency. Under these administrative rules, agencies have substantial discretion in evaluating applicants as well as selecting appropriate placements for children into foster or adoptive homes. (Compl. ¶ 26, citing Mich. Admin. Code R. 400.12301(1), 400.12701, 400.12304(1), 400.12706, 400.12404, 400.12709.)

Plaintiffs allege that after an agency accepts a child's case from DHHS, it immediately begins receiving per diem compensation from the State. For example, the Complaint alleges, some agencies receive at least $40 per day from the State for each adoption case they handle. These payments cease after a child is permanently placed and the agencies receive a lump-sum payment after placement depending on the outcome of the case. (Compl. ¶ 27.) According to the allegations of the Complaint, to fund the state's welfare system, the Michigan legislature annually makes appropriations for adoption and foster care services and the DHHS utilizes these appropriated funds to pay private child placing agencies under contract with the State to provide foster care and adoptive services. Plaintiffs allege that the DHHS has entered into adoption and foster care service contracts with over 100 private child placing agencies statewide, operating in multiple counties, many of whom are religiously affiliated. (Compl. ¶¶ 28-30.)

According to the allegations of the Complaint, the contracts entered into between DHHS and child placing agencies require the contracting agencies to comply with DHHS's non-discrimination statement, which mandates that agencies "will not discriminate against any individual or group because of race, sex, religion, age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs or disability." This requirement, Plaintiffs allege, "applies to all applications filed for adoption of [DHHS] supervised children, including [DHHS] supervised children assigned to a contracted agency." The contracts also require each contracting agency to "develop and implement a plan for adoptive home recruitment, retention, and support consistent with" DHHS's licensing standards applicable to...