Johnson ex rel. Estate of Cano v. Holmes
| Decision Date | 30 September 2004 |
| Docket Number | No. CIV 02-1239 JB/KBM.,CIV 02-1239 JB/KBM. |
| Citation | 377 F.Supp.2d 1084 |
| Parties | Scott JOHNSON, as personal representative of the estate of Graciela Cano a/k/a Grace Lee Bogey, deceased, and Lorena Torrez, Plaintiffs, v. Anne HOLMES, Bonnie Vehstedt, Karen Zarate, Lydia R. Saenz, Sonia Perez, Virginia Villareal, Vivian Encinias, Ginger Bowman, Denise H. Narvaez, Jane Doe, and John Doe in their individual capacities, the New Mexico Children Youth and Families Department, Terry Bogey, a/k/a Teri Bogey, and Veronica Bogey, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Paul Kennedy, Mary Y.C. Han, Adam S. Baker, Kennedy & Han, P.C., Albuquerque, for the Plaintiffs.
Tim Flynn-O'Brien, Bryan & Flynn-O'Brien, Albuquerque, for Defendants Lydia R. Saenz, Bonnie Vehstedt, Karen Zarate & Virginia Villarreal.
Randolph B. Felker, Felker, Ish, Ritchie & Geer, P.A., Santa Fe, for Defendants Sonia Perez Sanchez and Anne Holmes.
Michael Dickman, Law Office of Michael Dickman, Santa Fe, for Defendant New Mexico Children Youth and Families Department.
Jerry A. Walz, Anthony (T.J.) J. Trujillo, Walz and Associates, Cedar Crest, for the Defendants Veronica Bogey and Terry Bogey.
THIS MATTER comes before the Court on the CYFD Defendants Holmes, Perez, Encinias, Bowman and Narvaez' Motion to Dismiss Count VII, filed March 13, 2003 (Doc. 49). The primary issue is whether § 671(a)(9) of the Adoption Assistance and Child Welfare Act ("AACWA") — directly or through 42 U.S.C. § 1983 — confers a private right of action for damages. Because the Court finds that Congress did not intend to create a private right of action under 42 U.S.C. § 671(a)(9) for damages, the Court has granted the motion and dismissed Count VII.1
For purposes of this motion, the Court must assume Johnson's allegations are true.
Plaintiffs Scott Johnson and Lorena Torrez are residents and citizens of the State of New Mexico. See Amended Complaint For Civil Rights Violations, Breach of Contract, Tort Claims, and Damages ¶ 3, at 2, filed September 4, 2002 in the Second Judicial District, County of Bernalillo, State of New Mexico, and attached to Notice of Removal, filed October 2, 2002 (Doc. 1)("Amended Complaint"). Johnson is the personal representative of the estate of Graciela Cano a/k/a Grace Lee Bogey ("Grace"). See id. at 1. Torrez is the birth mother of Grace. See id. ¶ 11, at 3. Defendants Anne Holmes, Sonia Perez, Vivian Encinias, Ginger Bowman and Denise H. Narvaez (the "CYFD Defendants") were, at all relevant times, employees of the Children Youth and Families Department ("CYFD"), a governmental agency of the State of New Mexico. See id. ¶¶ 4-5, at 2. The CYFD Defendants were involved in securing relinquishment of parental rights by Grace's natural mother, in placing Grace in Defendant Veronica Bogey's home, and in Veronica Bogey's adoption of Grace. See id. ¶¶ 12-13, at 3.
On January 2, 1998, CYFD obtained legal custody of Johnson's decedent, Grace, a special needs child born with spina bifida on July 15, 1997, to Torrez. See id. ¶ 11, at 3. Grace was in the state's legal custody and presumably in foster care from January 2, 1998 until November 6, 1999. See id. ¶¶ 11, 15, at 3, 4.
In or around March 1999, the individual CYFD Defendants obtained a relinquishment of parental rights from Torrez by promising her that they would provide Grace with a safe home, and find an adoptive family who would love and protect her and be willing and able to provide for all of Grace's needs, including her special medical needs. See id. ¶ 12, at 3. This Relinquishment freed Grace for adoption. See id. ¶ 14, at 3. Johnson alleges that the parties entered a formal contract on March 12, 1999, whereby they agreed that, in exchange for the relinquishment of parental rights, CYFD would assume responsibility for Grace. See id. ¶ 13, at 3.
On November 6, 1999, after conducting only two short home visits with Veronica Bogey, and despite warning signs that she was unfit to care for Grace, the CYFD Defendants placed Grace in Veronica Bogey's home for adoption. See id. ¶ 15, at 4. Johnson alleges that CYFD placed Grace with Veronica Bogey without conducting an adequate and comprehensive home study and background investigation of Veronica Bogey and despite the fact that Grace's foster parents raised concerns about Veronica Bogey's fitness to parent Grace. See id. CYFD paid Veronica Bogey $487.00 as a monthly stipend upon the placement of Grace. See id. ¶ 16 at 4.
On March 23, 2000, the CYFD Defendants received a report that Veronica Bogey was physically abusing Grace. See id. ¶ 19, 23, at 4. Specifically, Grace's home health nurse reported that (i) in or around February 2000, she observed a large purple bruise on the left side of Grace's face that Veronica Bogey admitted she had caused; (ii) on or about March 16, 2000, she observed deep scratches on Grace's abdomen which Veronica Bogey admitted she had caused and which were so severe that they would cause scarring on Grace; (iii) on or about March 20, 2000, she observed Grace's hand to be swollen and bruised; and (iv) on March 21, 2000, she noticed fingernail marks on Grace's back and neck. See id. 20, at 4-5. The CYFD Defendants did not immediately and thoroughly investigate the allegations of abuse and made only one brief home visit to Veronica Bogey on April 3, 2002, despite their knowledge of facts substantiating the abuse report. See id. ¶ 21, at 5.
Rather than protect Grace, the CYFD Defendants left her in the home of her abuser, and despite efforts to prevent Veronica Bogey's adoption of Grace by persons concerned with the abuse, the CYFD Defendants made recommendations to the state court that directly resulted in the court granting the adoption petition on July 31, 2000. See id. ¶ 22, at 5. Veronica Bogey, with the CYFD Defendants' support and financial backing, adopted Grace on or about July 31, 2000. See id. ¶ 24, at 5. Johnson contends that the CYFD Defendants did not report known or suspected instances of abuse. Johnson does not allege that Grace was receiving aid under Part A or Part B of 42 U.S.C. § 671.
On or about September 2, 2000, Veronica Bogey and Terry Bogey, a caregiver of Grace, killed three-year-old Grace. See id. ¶ 26, at 5-6. The State of New Mexico subsequently charged the Bogeys with homicide. See id. Grace's autopsy revealed massive swelling and bleeding in her brain caused by trauma, and the Office of the Medical Investigator designated the manner of death as homicide. See id. The State of New Mexico has charged Veronica and Terry Bogey with the homicide. See id. Grace's autopsy also revealed a broken arm, which doctors determined had been broken two to several weeks before September 2, 2000; the Bogeys did not seek medical attention for this broken arm, indicating that Grace suffered a pattern of physical abuse at the hands of Veronica and Terry Bogey. See id. ¶ 27, at 6.
During the six-month period that Grace resided with Veronica Bogey, the CYFD Defendants did not report known or suspected instances of physical abuse and maltreatment of Grace by Veronica. See id. ¶¶ 76, at 15. The CYFD's alleged violation of the AACWA proximately caused injuries to Grace. See id. ¶ 78, at 15.
Johnson asserts, in Count VII of his Amended Complaint, that the "Defendants failed to report the known or suspected instances of physical abuse and maltreatment of Grace by Defendant Veronica Bogey as required by the [AACWA], despite evidence that Grace's health and welfare were being threatened." Amended Complaint ¶ 76, at 15. Johnson contends that Grace was a beneficiary of the Act's requirements, and that "the [AACWA] unambiguously confers upon her (or her duly authorized representative) a right to enforce the requirements by private suit." Id. ¶ 79, at 15. In Count VII of the Amended Complaint, Johnson seeks recovery of an award of compensatory and punitive damages, costs, and attorneys fees against Holmes, Perez, Encinias, Bowman, and Narvaez under AACWA for the CYFD Defendants' alleged violation of the AACWA, 42 U.S.C. §§ 620-628, 670-679A. See id. at 15-16.
In his Amended Complaint, Johnson does not specify upon which AACWA provision he relies for his claim that the CYFD Defendants violated the statute, but refers to the requirement imposed upon the State of New Mexico to submit a plan for approval by the Secretary of Health and Human Services and the requirement to "provide reports of physical abuse to appropriate agencies or official." Amended Complaint ¶¶ 74-75, at 15. Johnson alleges in general that the Defendants "failed to report known or suspected instances of physical abuse and maltreatment of Grace by Defendant Veronica Bogey as required by the Act...." Amended Complaint ¶ 76, at 15. These allegations appear to be drawn from 42 U.S.C. § 671(a)(9). Johnson contends that the individual Defendants are personally liable under this section because they allegedly did not report known or suspected instances of abuse involving Grace. Moreover, Johnson's Response to the motion to dismiss Count VII indicates that he relies on § 671(a)(9) as the basis for his claim for money damages under the AACWA. See Plaintiffs' Response in Opposition to Motion to Dismiss Count VII at 4, filed March 31, 2003 (Doc. 68).
Holmes, Perez, Encinias, Bowman, and Narvaez move the Court for an Order dismissing Count VII of the Amended Complaint. The Defendants have moved to dismiss this claim on the grounds that § 671(a)(9) does not confer a private cause of action against individual public employees for money damages. Additionally, the Defendants assert qualified immunity.
The Defendants move to dismiss Count VII for failure to state a claim upon which relief may be granted, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure.2 The "accepted rule [is] that a complaint should not be...
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Sam & Tony M. v. Chafee, C.A. No. 07-241-ML
...the AACWA did not confer an implied cause of action. Suter, 503 U.S. at 364, 112 S.Ct. 1360; see Johnson ex. re. Estate of Cano v. Holmes, 377 F. Supp. 2d 1084, 1092-1093 (D.N.M., 2004). Specifically, the Supreme Court determined that the AACWA only required a State to have an approved Stat......
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In re Rood
...329 F.3d 1255, 1268-1274 (C.A.11, 2003) (42 U.S.C. 675[5][D] and [E] do not create private cause of action); Johnson v. Holmes, 377 F.Supp.2d 1084, 1092-1101 (D.N.M., 2004) (42 U.S.C. 671[a][9] does not create a private cause of action), rev'd in part on other grounds 455 F.3d 1133 (C.A.10,......
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Sam M. v. Chafee, C.A. No. 07–241–ML.
...that the AACWA did not confer an implied cause of action. Suter, 503 U.S. at 364, 112 S.Ct. 1360; see Johnson ex rel. Estate of Cano v. Holmes, 377 F.Supp.2d 1084, 1092–1093 (D.N.M.2004). Specifically, the Supreme Court determined that the AACWA only required a State to have an approved Sta......
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