ET v. George

Decision Date07 January 2010
Docket NumberNo. 2:09-cv-01950 FCD DAD.,2:09-cv-01950 FCD DAD.
Citation681 F. Supp.2d 1151
PartiesE.T., K.R., C.B., and G.S., by their next friend, Frank Dougherty, on their behalf and on behalf of all those similarly situated, Plaintiffs, v. Ronald M. GEORGE, Chair of the Judicial Council of California, in his official capacity; William C. Vickrey, Administrative Director of the Administrative Office of the Courts of the Judicial Council, in his official capacity; and James M. Mize, Presiding Judge of the Superior Court of the County of Sacramento, in his official capacity, Defendants.
CourtU.S. District Court — Eastern District of California

681 F. Supp.2d 1151

E.T., K.R., C.B., and G.S., by their next friend, Frank Dougherty, on their behalf and on behalf of all those similarly situated, Plaintiffs,
v.
Ronald M. GEORGE, Chair of the Judicial Council of California, in his official capacity; William C. Vickrey, Administrative Director of the Administrative Office of the Courts of the Judicial Council, in his official capacity; and James M. Mize, Presiding Judge of the Superior Court of the County of Sacramento, in his official capacity, Defendants.

No. 2:09-cv-01950 FCD DAD.

United States District Court, E.D. California.

January 7, 2010.


681 F. Supp.2d 1155

Robyn T. Callahan, Jonathan Michael Cohen, Winston & Strawn LLP, San Francisco, CA, for Plaintiffs.

Robert A. Naeve, Jones Day, Irvine, CA, for Defendants.

MEMORANDUM AND ORDER

FRANK C. DAMRELL, JR., District Judge.

This matter is before the court on defendants Ronald M. George, William C. Vickrey, and James M. Mize's (collectively "defendants") motion to abstain and to dismiss the complaint. Plaintiffs E.T., K.R., C.B., and G.S., by their next friend, Frank Dougherty, (collectively "plaintiffs") oppose the motions. On November 6, 2009, the court heard oral argument on defendants' arguments relating to justiciability. For the reasons set forth below, defendants' motion to dismiss is GRANTED.

BACKGROUND

This case arises out of plaintiffs' allegations that the caseloads in dependency courts in Sacramento County are so excessive that they violate federal and state constitutional and statutory provisions. Specifically, plaintiffs contend that the overburdened dependency court system frustrates both the ability of the courts to adjudicate and provide children with a meaningful opportunity to be heard and the effective, adequate, and competent assistance of counsel. (Compl., filed July 16, 2009.)

A. Dependency Court Proceedings

Dependency proceedings are conducted to protect the safety and well-being of an abused or neglected child whose parents or guardians cannot or will not do so or who themselves pose a threat to the child. (Compl. ¶ 28.) They commence with an initial hearing, which is held to determine whether a child falls within one of ten jurisdictional bases of the juvenile court. Cal. Welf. & Inst.Code §§ 300, 305, 306, 311, 325 & 332. Dependency courts ultimately conduct an evidentiary hearing regarding the proper disposition of the child. Id. §§ 319, 352, 355 & 358. In most cases, at the disposition hearing, dependency courts "determine what services the child and the family need to be reunited and free of court supervision." Bridget A. v. Superior Court, 148 Cal.App.4th 285, 302-03, 55 Cal.Rptr.3d 647 (2d Dist.2007). However, the courts have a variety of options, from reuniting the family and child to removing the child from parental custody and placing the child in foster care. See generally id. (outlining court options at

681 F. Supp.2d 1156
disposition hearings). After a child is placed under court supervision, subsequent court proceedings and reviews are required every six months. Id.; see Cal. Welf. & Inst.Code §§ 364, 366.21, 366.22

California Welfare & Institutions Code § 317 requires that counsel be appointed for children in almost all dependency cases. (Compl. ¶ 34.) Specifically, § 317(c) provides that "if a child is not represented by counsel, the court shall appoint counsel for the child unless the court finds that the child would not benefit from the appointment of counsel." This finding must be made on the record. Id. Pursuant to a Standing Order of the Superior Court of the County of Sacramento, third party, court-appointed attorneys are automatically appointed to represent each child who is the subject of dependency proceedings in the county; these attorneys are also appointed as the child's guardian ad litem. (Compl. ¶ 50.)

B. Functions and Funding within the Dependency Court System

The Judicial Council of California is the body responsible for overseeing the statewide administration of justice in the California courts. (Compl. ¶ 9.) As Chair of the Judicial Council, the Honorable Ronald M. George,1 defendant, is responsible for the allocation of the judicial branch budget, including the allocation of relevant funds for courts and court-appointed child representation in dependency court proceedings. (Id.) The Administrative Office of the Courts (the "AOC") is the staff agency of the judicial council and is responsible for California's Dependency Representation, Administration, Funding, and Training ("DRAFT") program. (Compl. ¶ 10.) DRAFT was established in July 2004 by the Judicial Council of California to centralize the administration of court-appointed counsel services within the AOC. (Compl. ¶ 55.) As Administrative Director, defendant William C. Vickrey is responsible for the administration of the AOC. (Compl. ¶ 10.) Finally, the Presiding Judge of the Superior Court, the Honorable James M. Mize, defendant, is responsible for allocating resources within the Sacramento County Superior Court in a manner that promotes the implementation of state and local budget priorities and that ensures equal access to justice and the ability of the court to carry out its functions effectively. (Compl. ¶ 11.) The Presiding Judge also has the authority to assign judges to departments, such as Sacramento County Superior Court's dependency courts. (Id.)

The Superior Court of Sacramento previously paid for the court-appointed attorneys' services pursuant to a Memorandum of Understanding. (Compl. ¶ 55.) In 2008, however, the Superior Court of Sacramento agreed to participate in the DRAFT program. When Sacramento County joined the DRAFT program, the AOC became responsible for paying for the court-appointed attorneys' services. (Id.)

Plaintiffs allege that the staff attorneys for the non-profit agency, who serve as court appointed counsel for the approximately 5,100 children subject to dependency proceedings in the County of Sacramento, carry as many as 395 cases at a time. (Compl. ¶ 51.) Plaintiffs assert this is more than double the 188 caseload standard established by the Judicial Council and nearly four times the number promulgated by the National Association of Counsel

681 F. Supp.2d 1157
for Children. As a consequence, plaintiffs allege that the appointed lawyers are unable to adequately perform even the minimum tasks required under the law and in accordance with the American Bar Association's ("ABA") standards. Specifically, these lawyers rarely meet with their child clients in their foster care placements, rely on brief telephone contact or courtroom exchanges to communicate, cannot conduct complete case investigations or child-specific legal analysis, virtually never file extraordinary writs or pursue appeals, and rely on overworked county social workers without conducting an informed review of Child Protective Services' ("CPS") placement decisions. (Id.) Further, plaintiffs allege that the high caseload and inadequate salaries of these lawyers lead to high attorney turnover, which exacerbates the problems associated with adequate representation. (Compl. ¶ 52.) Plaintiffs contend that the court-appointed attorneys' unlawful caseloads are due to inadequate funding and assert that if the AOC had followed its own guidelines for DRAFT in funding the court-appointed attorneys, counsel could have met the recommended Judicial Council caseload standards. (Compl. ¶ 56.)

Plaintiffs allege that the County of Sacramento has only five judicial referees, who preside over dependency proceedings, responsible for approximately 5,100 active dependency cases. (Compl. ¶ 29.) Plaintiffs allege that this affords referees roughly two minutes of courtroom time per case. (Id.) Therefore, plaintiffs contend that a foster child appearing in a Sacramento County dependency court with ineffective counsel cannot reasonably expect the judicial referee to serve as a "backstop" and look out for his or her best interests. (Id.)

C. Named Plaintiffs

Plaintiff E.T. is a fourteen-year-old girl who is in her third foster care placement in less than one year. She is a special education student who has been diagnosed with depression. She was assigned a court-appointed attorney in October 2008 and has had two attorneys since then. (Compl. ¶ 59.) Although E.T. has had fourteen court hearings, her attorneys have met with her briefly only three times and have visited her at only one placement. (Compl. ¶¶ 60-61.) They have been unable to stabilize her foster care placements. (Compl. ¶ 61.) Further, they have been unable to investigate her mental health issues to notify the dependency court of any problems. (Compl. ¶ 62.)

Plaintiff K.R. is a thirteen-year-old girl who is in her fifth foster care placement. She suffers from severe behavioral problems, including oppositional defiance disorder. She was assigned a court-appointed attorney in early 1996. When her case was reopened in September 2005, she was again assigned a court-appointed legal representative. K.R. has had six attorneys since then. (Compl. ¶ 63.) However, although her case has had seventeen court hearings since September 2005, K.R.'s attorneys have not visited any of her foster care placements or had any contact with school personnel. (Compl. ¶ 64.) K.R. has been interviewed only once outside of court, by a social worker, and virtually nothing has been done to investigate K.R.'s interests beyond the scope of the dependency court proceedings. K.R.'s attorneys have been unable to file pleadings, motions, responses, or objections as necessary to protect her interests. Further, they have been unable to stabilize her foster care placements, determine whether she requires public services, or secure a proper educational placement. (Compl. ¶ 65.)

Plaintiff C.B. is a seventeen-year-old, developmentally disabled girl, who is in

681 F. Supp.2d 1158
her tenth foster care placement. She was assigned a court-appointed attorney on February 17, 1999,...

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