Jeanine B. By Blondis v. Thompson, Civ. A. No. 93-C-547.

• Citation: 877 F. Supp. 1268
• Decision Date: 02 March 1995
• Docket Number: Civ. A. No. 93-C-547.
• Parties: JEANINE B., by her next friend Robert BLONDIS; Aline H. by her next friend Wesley Scott; Maurice R. by his next friend Wesley Scott; Douglas R. by his next friend Wesley Scott; Carolyn D. by her next friend Cynthia Lepkowski; James B. by his next friend Mary Protz; Mindi D. by her next friend Sheila Smith; Alan A. by his next friend Sheila Hill-Roberts; Darren C. by his next friend Chris Velnetske; Alissa S. by her next friend Ann Marie Abell; Roxanne F. by her next friend Julia Vosper; Patricia S. by her next friend Oshiyemi Adelabu; Jocelyn Z. by her next friend Jane Moore; Derrick Z. by his next friend Jane Moore; Karen M. by her next friend Joan Zawikowski, individually and on behalf of all others similarly situated, Plaintiffs, v. Tommy G. THOMPSON, in his official capacity as Governor of the State of Wisconsin; Richard Lorang, in his official capacity as Acting Secretary of the Department of Health and Social Services of the State of Wisconsin; F. Thomas Ament, in his official capacity as the County Executive of the County of Milwaukee; and Thomas Brophy, in his official capacity as Director of the Milwaukee County Department of Human Services, Defendants.
• Court: United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin

877 F. Supp. 1268

JEANINE B., by her next friend Robert BLONDIS; Aline H. by her next friend Wesley Scott; Maurice R. by his next friend Wesley Scott; Douglas R. by his next friend Wesley Scott; Carolyn D. by her next friend Cynthia Lepkowski; James B. by his next friend Mary Protz; Mindi D. by her next friend Sheila Smith; Alan A. by his next friend Sheila Hill-Roberts; Darren C. by his next friend Chris Velnetske; Alissa S. by her next friend Ann Marie Abell; Roxanne F. by her next friend Julia Vosper; Patricia S. by her next friend Oshiyemi Adelabu; Jocelyn Z. by her next friend Jane Moore; Derrick Z. by his next friend Jane Moore; Karen M. by her next friend Joan Zawikowski, individually and on behalf of all others similarly situated, Plaintiffs, v. Tommy G. THOMPSON, in his official capacity as Governor of the State of Wisconsin; Richard Lorang, in his official capacity as Acting Secretary of the Department of Health and Social Services of the State of Wisconsin; F. Thomas Ament, in his official capacity as the County Executive of the County of Milwaukee; and Thomas Brophy, in his official capacity as Director of the Milwaukee County Department of Human Services, Defendants.

Civ. A. No. 93-C-547.

United States District Court, E.D. Wisconsin.

March 2, 1995.

COPYRIGHT MATERIAL OMITTED

Christopher Dunn, American Civ. Liberties Union Children's Rights Project, New York City and Peter M. Koneazny, American Civ. Liberties Union of Wisconsin Foundation, Milwaukee, WI, for plaintiffs.

John F. Jorgensen, Principal Ass't Corp. Counsel, Office of Corp. Counsel, Milwaukee, WI, for Milwaukee county defendants.

Mary Woolsey Schlaefer and Peter C. Anderson, Ass't Attys. Gen., Madison, WI, for state defendants.

DECISION AFTER ORAL ARGUMENT ON FEBRUARY 3, 1995 AND WRITTEN ORDER DATED FEBRUARY 16, 1995 DENYING IN PART AND GRANTING IN PART THE STATE DEFENDANTS' MOTION TO DISMISS AND GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

REYNOLDS, District Judge.

I. INTRODUCTION

In this civil rights case, children who allegedly are or should be in the Milwaukee County foster care system have sued the Governor of Wisconsin, the Secretary of the Wisconsin Department of Health and Social Services ("Wisconsin DHSS" or, jointly, "the State defendants"), the Milwaukee County Executive, and the Director of the Milwaukee County Department of Human Services ("Milwaukee County DHS" or, jointly, "the County defendants").¹ The plaintiff children claim that the defendants run the Milwaukee foster care system in a manner which violates their rights, as created by the United States and Wisconsin Constitutions and by the Federal Adoption Assistance and Child Welfare Act, Child Abuse Prevention and Treatment Act, Rehabilitation Act, and Americans with Disabilities Act. The children seek a court order designed to stop these alleged violations. They do not ask for money damages.

The State defendants moved to dismiss the claims against them, primarily on the grounds that the county, and not the state, has direct responsibility for the foster children, and thus the State defendants argue that the children cannot allege that the State defendants caused the children's alleged deprivations. Nor do the State defendants believe that federal statutes give the children the right to sue them for the failures of the foster care system in Milwaukee County. On February 3, 1995, this court heard oral argument on the motion to dismiss, on the plaintiffs' motion for class certification, and on the plaintiffs motion to pursue discovery against the State defendants. After hearing the arguments, the court ruled orally that the plaintiffs had sufficiently alleged that the State defendants had some responsibility toward the foster children in Milwaukee County, that federal statutes give rise to private rights of action for the children, and that the State defendants would remain in the suit to defend against most of the claims. The court dismissed one of the claims brought against the State defendants under the Adoption Assistance and Child Welfare Act, along with the claims brought against the State defendants under the Americans with Disabilities Act and the Rehabilitation Act. The court also granted the plaintiff children's motion to certify a class, and created two subclasses. Finally, the court ordered that discovery between the plaintiffs and the State defendants begin immediately, and that the trial would be held on May 16, 1995.

This decision elaborates upon the February 3, 1995, oral rulings and the February 16, 1995, order reducing the oral rulings to writing. Section II summarizes the plaintiffs' lengthy complaint. Section III analyses the State defendants' motion to dismiss. Finally, Section IV elaborates on the court's class certification ruling.

II. THE COMPLAINT

A. Factual Allegations

The complaint makes several general allegations of systematic failures by the Milwaukee County DHS (Compl. ¶¶ 218-259), and illustrates these failures through the specific cases of fifteen plaintiffs. (Id. ¶¶ 58-217.)

The systematic failures alleged against Milwaukee County DHS include a long list of facts indicating a collapse of all stages of the foster care system. For instance, the complaint alleges that the defendants have failed to investigate adequately or at all reports of suspected abuse or neglect of children who are not yet in DHS custody. As specific allegations of failure to adequately investigate neglect and abuse, the complaint makes the following claims:

— Plaintiff Aline H. and her brothers, Plaintiffs Maurice and Douglas R., were left in their home despite the fact that their sister was in DHS custody. After Aline had been missing from school for several months, a Department social worker visited the home in March of 1988, and determined it to be a case of neglect. However, no one followed up with the case until May, when a Department worker went into the home and found it to be very dirty and unsanitary. At that time, the Department obtained custody of Aline but left three-year old Maurice and 18 month-old Douglas at home until July, when the Department worker returned and found conditions worse. (Compl. ¶¶ 73-78.)

— In May of 1991, a Department worker responding to a neglect report found that Plaintiff Carolyn D. (then three years old) lived in a filthy home without adequate food or medical attention. Carolyn and her brother were left in their parents' home without adequate efforts to provide services to the family. When Carolyn's father died in July 1991, her mother moved them to another family's home, where the man had a history of substance abuse and domestic violence. A DHS worker visited the home in August 1991, but the Department did not remove Carolyn and her brother from their mother's custody until October 1991. (Id. ¶¶ 87-91)

— Plaintiff Alan A. (born in 1983) was placed in foster-care custody in December 1988 when his mother disappeared. In November 1992, the Department returned Alan to his mother's home, but did not supervise the home or provide services to Alan or his family. The DHS worker responsible for Alan's case was notified in January 1993 that Alan's mother was missing family therapy appointments, but the worker took no action. In fact, Alan's mother was not arranging court-ordered therapy, had been evicted from two or three residences during the year. In February 1993, Alan's mother was arrested and has been in custody since her arrest.

Alan was left in the care of his 16-year-old sister and his mother's live-in boyfriend. In March, the assigned Department caseworker, her supervisor, and the Children's Court guardian ad litem learned that the boyfriend had struck Alan with a belt on his right leg, and struck him on the back, leaving red marks on his leg, and a hand-print on his back. They also learned that Alan's sister had a drug problem. The Department employees did nothing. Two days later, a Children's Court duty judge granted a pick-up order, but Alan was not taken into Department custody for four more days. (Id. at ¶¶ 130-145.)

— Plaintiff Patricia S. was six years old in 1989 when she was taken into custody after she and her mother "had been thrown out of the filthy, unfurnished attic of a drug house because Patricia's mother wanted to bring in men for money for drugs and the owner of the house wanted some of the proceeds." (Id. ¶ 184, quoting a Department report.) At the time, DHS had custody of Patricia's two brothers and one sister, but had made no efforts to protect Patricia or to offer her mother services. (Id. ¶ 185.)

The plaintiff children also assert that the state and county have failed to provide services to children and families to avert unnecessary entry of children into foster care during the approximately six months between the time that a child is taken from a home and the time when Children's Court finds that the child has been abused or neglected. They claim that the system fails to identify and develop available and appropriate placements, and to keep useful and reliable computerized information to match a child with a foster home. Further, they assert that the system does not properly train and supervise foster parents.

The children also allege that the defendants have failed to take children out of inappropriate and harmful foster homes, and to ensure that they receive necessary medical and dental care, and appropriate education. For instance:

— Plaintiff Jeanine B. alleges that the county placed her with a family that was already responsible for twelve children. In 1989, when Jeanine was eight years old, her foster father struck her with a plastic container, necessitating stitches. The foster mother referred to Jeanine as a "whore." In July 1990, Jeanine's therapist warned that conditions in her foster home were unacceptable, but Milwaukee County DHS did not attempt to locate a foster home which was trained to meet her needs, or to find an adoptive home for her. Jeanine remained in

...