Eric L. By and Through Schierberl v. Bird

• Decision Date: 31 March 1994
• Docket Number: Civ. No. 91-376-M.
• Citation: 848 F. Supp. 303
• Parties: ERIC L., By and Through his next friend, Alice SCHIERBERL; Kim C., By and Through her next friend and mother, Mary C.; Jeff D., By and Through his next friend, Richard Cornelius; James K., By and Through his next friend, Ronald K. Lospennato; Julie W., By and Through her next friend, Marilyn T. Mahoney; Bruno J., By and Through his next friend, Lucinda Hopkins; Jennifer B., By and Through her next friend and father, Robert C., individually and on Behalf of all others similarly situated, Plaintiffs, v. Harry BIRD, Commissioner of the New Hampshire Department of Health and Human Services; Richard Chevrefils, Director of the New Hampshire Division of Children and Youth Services, Defendants.
• Court: U.S. District Court — District of New Hampshire

848 F. Supp. 303

ERIC L., By and Through his next friend, Alice SCHIERBERL; Kim C., By and Through her next friend and mother, Mary C.; Jeff D., By and Through his next friend, Richard Cornelius; James K., By and Through his next friend, Ronald K. Lospennato; Julie W., By and Through her next friend, Marilyn T. Mahoney; Bruno J., By and Through his next friend, Lucinda Hopkins; Jennifer B., By and Through her next friend and father, Robert C., individually and on Behalf of all others similarly situated, Plaintiffs, v. Harry BIRD, Commissioner of the New Hampshire Department of Health and Human Services; Richard Chevrefils, Director of the New Hampshire Division of Children and Youth Services, Defendants.

Civ. No. 91-376-M.

United States District Court, D. New Hampshire.

March 31, 1994.

COPYRIGHT MATERIAL OMITTED

Ronald K. Lospennato, Bruce E. Friedman, Concord, NH, for plaintiffs.

Daniel J. Mullen, Concord, NH, for defendants.

Erica U. Bodwell, Peterborough, NH, for amicus parties.

ORDER

McAULIFFE, District Judge.

Plaintiffs in this class action seek declaratory and injunctive relief under the Fourteenth Amendment to the United States Constitution; the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-678; the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-5106a; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42 U.S.C. § 1983 et seq. Defendants move to dismiss the complaint under Rule 12(b)(6), asserting that plaintiffs have failed to state claims upon which relief may be granted.

I. Background

The named plaintiffs filed this action on behalf of themselves and all children who have been placed in foster care or some other child care arrangement outside of their homes by the New Hampshire Division of Children and Youth Service ("DCYS"), and on behalf of all children who have been abused and neglected and who are or should be known to DCYS by virtue of that abuse or neglect.

Plaintiffs assert federal statutory and constitutional violations arising from defendants' alleged failure to take the required measures to maintain the integrity of plaintiffs' families where possible, to reunite removed children with their families as soon as possible, or to place them in secure, permanent homes within an appropriate time and in an appropriate manner. Plaintiffs further allege that defendants have failed to provide services necessary to protect children in the class from harm.

The plaintiff class includes a subclass of children with disabilities. In addition to the allegations made particular to the named plaintiffs, the complaint alleges that members of the subclass of children have been subjected to discrimination based upon their disabilities.

II. Standard of Review

Plaintiffs claims shall not be dismissed "unless it appears beyond doubt that they can prove no set of facts in support of their claims which would entitle them to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). In determining whether plaintiffs state claims entitling them to relief, the court necessarily assumes the truth of all facts pled in the complaint and indulges all reasonable inferences arising from those facts in favor of plaintiffs. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989).

III. Discussion

A. Constitutional Claims

Plaintiffs allege the existence and violation of certain substantive rights under the Due Process Clause of the Fourteenth Amendment to the Constitution. Specifically, they claim rights to (1) safe and humane conditions and treatment, (2) reasonable stability in foster care placement, (3) family privacy, autonomy, and association, and (4) freedom from bodily restraint.¹ Plaintiffs assert that defendants "knowingly, intentionally, and with deliberate indifference" violated these rights, and that defendants' policies and practices constitute a "substantial departure from ... accepted standards of professional judgment." Second Amended Complaint, ¶¶ 37-38. Plaintiffs also allege violations of their rights to procedural due process and equal protection. Second Amended Complaint, ¶ 40. They seek declaratory and injunctive relief under 42 U.S.C. § 1983.

To maintain an action for constitutional violations under § 1983, plaintiffs must demonstrate both that a particular constitutional right exists, and that they were deprived of that right under color of state law. Willhauck v. Halpin, 953 F.2d 689, 703 (1st Cir.1991). As it is undisputed that defendants acted under color of state law, the court must ascertain whether plaintiffs have asserted violations of any constitutional rights.

1. Safe and Humane Conditions and Treatment

Individuals in state confinement enjoy "constitutionally protected interests in conditions of reasonable care and safety...." Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982) (addressing constitutional rights of individual involuntarily committed to state custody). Although the state has no affirmative constitutional duty to protect children who are in the custody of their parents, the Supreme Court has suggested that children in foster care may be in a situation "sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect." DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 201 n. 9, 109 S.Ct. 998, 1006 n. 9, 103 L.Ed.2d 249 (1989). Several circuits have in fact extended the substantive due process rights recognized in Youngberg to children in foster care. See, e.g., Norfleet v. Arkansas Dep't of Human Services, 989 F.2d 289 (8th Cir.1993) (surveying cases from the Second, Sixth, Seventh, and Eleventh Circuits). The Court of Appeals for the First Circuit has not yet addressed the issue.

This court finds persuasive the principles adopted in other circuits extending Youngberg to the foster care context. At this juncture, it appears that plaintiffs have stated facts sufficient to support a claim that their rights to "reasonable care and safety" while in foster care have been violated. Accordingly, defendants' motion to dismiss this claim is denied.

2. Stability in Foster Care Placements

Plaintiffs rely on K.H. through Murphy v. Morgan, 914 F.2d 846 (7th Cir.1990), in support of their alleged right to stable foster care placements. However, in that case the Seventh Circuit concluded that such a right, if it existed, was not clearly established. K.H. through Murphy, 914 F.2d at 853. That court also remarked that where "the reasons for the shuttle of children among successive foster parents are not entirely clear," they "cannot be assumed to be frivolous." Id.

The complaint pleads no facts tending to establish that DCYS's placement of children with successive foster parents is so devoid of justification as to give rise to a substantive violation of the Due Process Clause. Accordingly, plaintiffs' constitutional claims relating to stability in foster care placement must be dismissed.

3. Family Rights

The Supreme Court has on several occasions recognized an abstract fundamental liberty interest in "family integrity." See Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir.1992) (citing cases). This right, however, is not absolute; the government has a compelling interest in the welfare of children, and may intervene in the relationship between parent and child, provided constitutionally adequate procedures are followed. Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993) (citing Stanley v. Illinois, 405 U.S. 645, 649, 92 S.Ct. 1208, 1211, 31 L.Ed.2d 551 (1972)).

With respect to named plaintiff Jennifer B., it appears that plaintiffs have alleged facts supporting an actionable claim sufficient to withstand a motion to dismiss under Rule 12(b)(6). See Garita Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992).²

4. Freedom from Bodily Restraint

Although plaintiffs assert a right to freedom from bodily restraint, a right specifically recognized in Youngberg, the complaint contains no allegations that any of the named plaintiffs or members of the class have been deprived of this right. Consequently, any claims plaintiffs may have related to "bodily restraint" are hereby dismissed. See Fleming v. Lind-Waldock & Co., 922 F.2d 20, 23 (1st Cir.1990) (each allegation must be supported by specific facts).

5. Procedural Due Process and Equal Protection

Plaintiffs allege that N.H.Rev.Stat. Ann. ch. 169-C, New Hampshire's child protection statute, creates an entitlement to certain services provided by DCYS, and they invoke due process protection against state deprivation of that entitlement. Whether state child protection statutes create such an entitlement is a question specifically left open by the Supreme Court in DeShaney. See DeShaney, 489 U.S. at 195 n. 2, 109 S.Ct. at 1003 n. 2. Under these circumstances, the court declines to dismiss plaintiffs claims at this early stage. This question would be more appropriately addressed on a motion for summary judgment after the parties have had an opportunity to develop the record and to brief the issue in greater depth.

With respect to the violation of equal protection claims, asserted on behalf of the subclass of disabled children, plaintiffs have clearly alleged facts sufficient to withstand defendants' motion to dismiss.

B. Private Enforcement of Federal Statutes

42 U.S.C. § 1983 is properly invoked to redress violations of a federal statute, Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), if the statute creates enforceable "rights, privileges, or immunities," and if Congress has not foreclosed such enforcement in the statutory enactment itself. Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 107 S.Ct. 766, 93...