JB a child v. Valdez

Citation186 F.3d 1280
Decision Date12 August 1999
Docket NumberNo. 96-2278,96-2278
Parties(10th Cir. 1999) J.B., a child, by FREDERIC M. HART, his next friend; Y.A., D.A., E.A., F.A., V.C., and C.C., by ELLA JOAN FENOGLIO, their next friend; R.E., C.E., J.E., and E.E., children, by BARBARA E. BERGMAN, their next friend; J.S., a child, by PETER H. JOHNSTONE, his next friend; on behalf of themselves and all others similarly situated, Plaintiffs - Appellants, v. J. ALEX VALDEZ, Secretary of the New Mexico Department of Health; WILLIAM H. JOHNSON, JR., Secretary of the New Mexico Human Services Department; HEATHER WILSON, Secretary of the New Mexico Children, Youth and Families Department; MICHAEL J. DAVIS, State Superintendent of Public Instruction; ELEANOR ORTIZ, President of the State Board of Education; VAN W. WITT, Vice President of the State Board of Education; MARLIS E. MANN; EMMALOU RODRIGUEZ, Secretary of the State Board of Education; RUDY CASTELLANO; WALLACE DAVIS; ROGER LENARD; LYNN MEDLIN; DARL MILLER; BEVERLY R. O'DELL; MILLIE POGNA; STEVEN SCHMIDT; CATHERINE M. SMITH; FLORA SANCHEZ; and DAVID STEINBORN, members of the State Board of Education, Defendants - Appellees. CHILDREN'S RIGHTS, INC., Amicus Curiae
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

[Copyrighted Material Omitted] Joseph Goldberg, Freedman, Boyd, Daniels, Hollander, Guttman & Goldberg, Abuquerque, New Mexico (Jane B. Wishner, Browning & Peifer, Albuquerque, New Mexico, and Peter Cubra, Albuquerque, New Mexico, with him on the briefs), appearing for Plaintiffs-Appellants.

John H. Clough, Assistant Attorney General, (Robert T. Booms, Assistant Attorney General, State of New Mexico, Santa Fe, New Mexico, with him on the brief), appearing for Defendants-Appellees.

Marcia Robinson Lowry and Suzanne Nossel, for Children's Rights, Inc., New York, New York, filed an amicus curiae brief.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

TACHA, Circuit Judge.

Plaintiffs, sixteen mentally or developmentally disabled children who are or were in the custody of the state of New Mexico, brought this action for declaratory and injunctive relief alleging that defendants have failed to provide protections and therapeutic services required by federal statutes and the United States Constitution. Plaintiffs sought to certify a class comprised of "[a]ll children who are now or in the future will be (a) in or at risk of State custody and (b) determined by defendants and/or their agents to have any form of mental and/or developmental disability for which they require some kind of therapeutic services or support." Appellants' App., Vol. 2, at 226. The district court denied class certification and further abstained from hearing the case. Twelve of the sixteen original plaintiffs appeal these rulings.1 We affirm.

I. Procedural History

Plaintiffs, through their next friends, seek structural reform of New Mexico's system for evaluating and treating children with mental and developmental disabilities in its custody. The stories of the named plaintiffs reveal a child welfare system having terrible difficulties providing the children with the kind of care and treatment they deserve.

In an effort to improve the services and protections provided by the state and to effect system-wide change, plaintiffs initiated this action in November 1993 by filing a class action complaint. They amended the complaint in March 1994, alleging that the defendants, several New Mexico state officers,2 had violated the Rehabilitation Act of 1973, the Americans with Disabilities Act ("ADA"), the Medicaid Act, the Alcohol, Drug Abuse and Mental Health Reorganization Act ("ADAMHRA"), the Individuals with Disabilities Education Act ("IDEA"), and the Fourteenth Amendment. In essence, plaintiffs charged the state with failing to provide them services, benefits, and protections guaranteed by federal statutory and constitutional law. In May 1995, the parties entered into a stipulation of additional facts to provide the district court with an update regarding the custodial status of the named plaintiffs. The parties informed the court that they intended it to consider this stipulation as part of the complaint. On October 6, 1995, the district court dismissed with prejudice plaintiffs' claims under the ADAMHRA and certain claims under the IDEA, as well as some claims against the Secretary of the New Mexico Department of Health, the Secretary of the New Mexico Human Services Department, and members of the State Board of Education. In addition, the district court dismissed without prejudice certain claims under the Rehabilitation Act, the ADA, and the Fourteenth Amendment. Plaintiffs do not appeal from these rulings.

In March 1994, plaintiffs moved for class certification. The district court sua sponte ordered the parties to stipulate to additional facts regarding the current status of each named plaintiff. The parties filed this second stipulation of facts on May 10, 1996. On June 26, 1996, after all of the above filings and order of dismissal, the district court denied class certification. In October 1996, the district court granted reconsideration of its previous denial of defendants' February 1995 motion to abstain. Upon reconsideration, the district court found abstention appropriate based on Younger v. Harris, 401 U.S. 37 (1970), and its progeny.

Plaintiffs appeal the district court's denial of class certification and decision to abstain. Defendants, for the first time on appeal, additionally argue that the Eleventh Amendment precludes us from hearing this case.

II. Factual Background

Plaintiffs estimate, and defendants do not dispute, that New Mexico has approximately 3000 children in its custody and that at least 1000 have mental or developmental disorders. Children with disabilities in state custody may receive a range of treatments, from in-home support services for the family to complete institutionalization. As shown by the complaint and succeeding stipulations of fact, the named plaintiffs have varied backgrounds, needs, and custodial situations. For the purposes of this appeal, we take the allegations contained in the complaint as true. See 2 Herbert Newberg & Alba Conte, Newberg on Class Actions § 7.26 (3d ed. 1992). Moreover, because the complaint does not tie any of its broad allegations with the individual named plaintiffs, we have liberally construed, with the help of the district court's order of dismissal, the violations that pertain to each child.

J.B. has at least six mental and developmental disabilities. Fourteen years old at the time of the complaint, the state had placed him in custody two years earlier because of parental abuse. The state first placed him in a children's psychiatric hospital for evaluation and treatment before moving him to a special needs foster home, two private psychiatric hospitals, a group home, a residential treatment center, a homeless shelter, and a regular foster home. At the time of the complaint, J.B. resided in a special needs foster home. However, according to the 1995 stipulation, New Mexico had placed him in eleven separate facilities or programs since then. He frequently ran away from these environments and was once arrested for shoplifting. According to the 1996 stipulation of facts, the state placed J.B. in a juvenile detention center for a period of time. At the latest update, he resided in a motel and received social worker and parole officer services. Plaintiffs allege that defendants violated the ADA and Rehabilitation Act by placing J.B. in an overly restrictive environment, failing to facilitate a permanent placement for him, and failing to provide him with an appropriate educational program. They further claim a violation of the IDEA because J.B. received no appointed surrogate parent to protect his educational rights.

Y.A., D.A., E.A., F.A., V.C., and C.C. are siblings who each have several developmental, emotional, and behavioral disabilities. The state took them into custody in 1990 and has moved them repeatedly, never placing more than two of the siblings together. According to the 1995 stipulation, Y.A. had received eleven placements since the complaint. By 1996, Y.A. had turned eighteen, and the state had discharged her from custody. She currently receives social security benefits. The state initially placed D.A. in a residential treatment center. The 1995 stipulation indicates that he lived with his mother, except for a week spent at a juvenile detention center after an arrest. By May 1996, a judicial order had discharged him from state custody at the age of sixteen. At that time, D.A. lived in the family home and received social security benefits while his family received support services from defendants. E.A., F.A., V.C., and C.C. received placements in foster homes. The subsequent stipulations of facts indicate that the state returned them to their mother's care and discharged them from state custody.

Plaintiffs argue that defendants violated the rights of each of these siblings under the ADA and Rehabilitation Act because they placed them in overly restrictive settings and failed to provide them with appropriate educational programs. They further claim that defendants violated these children's Fourteenth Amendment right to family integrity by placing them in separate locations. They allege an additional violation to Y.A., D.A., E.A., and F.A.'s rights for failure to facilitate a permanent placement.

The state took custody of siblings R.E., C.E., J.E., and E.E. because of abuse and neglect, returning them to their mother after one year. R.E. suffers from emotional and behavioral disabilities, while C.E., J.E., and E.E. have developmental and behavioral disabilities. With respect to R.E., her mother did not want her returned because the state did not provide in-home services and three disabled sons overwhelmed her. By May 1995, a...

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