Joseph A. By Wolfe v. NM Dept. of Human Services

• Citation: 575 F. Supp. 346
• Decision Date: 23 September 1983
• Docket Number: Civ. No. 80-0623-JB.
• Parties: JOSEPH A. by WOLFE et al., Plaintiffs, v. NEW MEXICO DEPARTMENT OF HUMAN SERVICES, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

575 F. Supp. 346

JOSEPH A. by WOLFE et al., Plaintiffs, v. NEW MEXICO DEPARTMENT OF HUMAN SERVICES, et al., Defendants.

Civ. No. 80-0623-JB.

United States District Court, D. New Mexico.

January 4, 1982.

On Motion For Summary Judgment February 7, 1983.

Consent Decree September 23, 1983.

COPYRIGHT MATERIAL OMITTED

Marcia Robinson Lowry, George Kannar, ACLUF, New York City, Susan M. Conway and Robert D. Levy, Albuquerque, N.M., for plaintiffs.

Shaffer, Butt, Thornton & Baehr, John A. Klecan, Albuquerque, N.M., Paul G. Bardacke, Atty. Gen. of New Mexico, James W. Catron, Jr., Asst. Atty. Gen., Santa Fe, N.M., for defendants.

MEMORANDUM OPINION AND ORDER

BURCIAGA, District Judge.

THIS MATTER comes before the Court on the motion of the defendants to dismiss for failure to state a claim. The plaintiffs are children currently in the custody of the New Mexico Department of Human Services (hereinafter "the Department"). They sue through their next friends under 42 U.S.C. § 1983 (1976) for alleged violations of their civil rights. The defendants are the Department and certain state officials employed by the Department. Jurisdiction is proper under 28 U.S.C. § 1343(3) (1976). For the reasons stated below, the motion of the defendants will be granted in part and denied in part.

The statement of the claim contains the following allegations. Homeless, neglected or otherwise dependent New Mexico children are the responsibility of the Department. These children come into the custody of the Department either by consent of the child's parents or through a court order entered after a neglect proceeding. A substantial portion of the Department's funding for the care of these children is from the federal Department of Human Services under Titles IV and XX of the Social Security Act.

The Department's first obligation to these children, under both state and federal guidelines, is to provide assistance to the child's family in hopes of creating a family situation fit for the child. If this cannot be done or if the family is unwilling to have the children, the Department is required to determine whether the child should be adopted, and if so, to find a new permanent family for the child. There exists no procedure for periodic review of a child's status to determine the child's need for continued foster care, whether to terminate the rights of the child's biological parents and make the child eligible for adoption, or whether to place the child with adoptive parents. Approximately forty percent of the children in the Department's custody are so situated with the consent of their parents.

The plaintiffs allege that hundreds of New Mexico children cannot be returned to their biological families and are in need of permanent homes. It is alleged that the defendants have failed and refused to establish procedures to determine whether children should continue in foster care, whether the rights of the biological parents should be terminated, or whether a child should be placed for adoption. It is also alleged that the Department does not even have an accurate count of the children in their custody.

There is no procedure for development of a permanent plan for the progress of the children to permanent homes. Approximately ten percent of the children surveyed have no permanent plan regarding their status in spite of the duty of the Department to develop such plans for all of the children. Approximately one-third of all of the children in custody have been found to be fit for adoption under the plans developed for them, but most of these children have not yet been freed for adoption. According to the plaintiffs, many of these children are forced to wait for years before the Department takes appropriate action to make them eligible for adoption. The children are frequently moved from one foster home to the next, resulting in emotional disturbances which render the children less likely to be adopted. The average length of time in foster care for children in the Department's custody is nearly five years.

It is alleged that the defendants have a policy and practice of failing and refusing to seek adoptive placements for the children until after they have been freed for adoption, and that the defendants have refused to proceed expeditiously to free them for adoption. Each of the named children plaintiffs are currently in custody and have been determined by the Department to be candidates for adoption, yet appropriate measures to free them for adoption or place them in adoptive homes have not been taken. Several of the children are institutionalized and all have been in Department custody for over three years. All have suffered and continue to suffer mental and emotional distress as a result of the defendants' alleged failures.

From these allegations, the plaintiffs purport to have stated six distinct claims for relief:

1. that they have been denied a state benefit without due process;

2. that they have been deprived of their rights to liberty, privacy and family integrity;

3. that the lack of review of the status of children voluntarily placed in state custody violates their right to due process;

4. that the lack of review of the status of children placed in state custody by court order violates their right to due process;

5. that by failing to seek adoptive homes for children whom the Department has determined to be appropriate for adoption violates the children's rights to liberty and placement in the least restrictive setting; and

6. that these failures of the defendants violate rights the children have under Titles IV and XX of the Social Security Act and related federal regulations.

The prayer for relief seeks to have the action declared a class action, a declaratory judgment declaring the policies of the defendants to be violative of the rights listed above, and preliminary and permanent injunctions against the defendants to keep them from continuing to violate the plaintiffs' rights. In addition, the plaintiffs seek compensatory and punitive damages, costs and attorneys' fees.

The defendants have moved to dismiss the action on a number of grounds. They argue that the allegations recited above fail to state a claim upon which relief can be granted, in that there is no constitutional or statutory right to a permanent, stable adoptive home. They also argue that the Eleventh Amendment bars the claims for compensatory and punitive damages. Finally, they argue that the doctrine of abstention should be applied to this case and that the Court should refuse to accept jurisdiction over the matter.

I. Abstention

Because the abstention question is potentially dispositive of the entire cause, that question will be discussed first. The defendants argue that the Court should refuse to involve itself in the operations of State government out of respect for the principles of comity and federalism. The Court finds this argument to be without merit.

The State has failed to make even a prima facie showing that the facts of this case are proper for application of any of the abstention doctrines. There are currently three "types" of abstention recognized by the federal courts. See, Colorado River Conservation District v. United States, 424 U.S. 800, 813-817, 96 S.Ct. 1236, 1244-46, 47 L.Ed.2d 483 (1976). The State has made no attempt to show that this case falls within any of these abstention theories. Therefore, the motion will be denied on this ground.

II. The Due Process Claims

In considering a motion to dismiss under Rule 12(b)(6), the Court follows certain well-established principles. The well-pleaded allegations of the complaint must be taken as true, and all reasonable inferences from the allegations must be entertained in favor of the party opposing the motion. Lessman v. McCormick, 591 F.2d 605 (10th Cir.1979); Mitchell v. King, 537 F.2d 385 (10th Cir.1976). The motion is a disfavored one, and should be granted only rarely. Madison v. Purdy, 410 F.2d 99 (5th Cir. 1969). All doubts are resolved in the pleader's favor. Parkinson v. California, 233 F.2d 432 (10th Cir.1956). The motion cannot be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). It is with these principles in mind that the Court will consider the merits of the motions.

The Fourteenth Amendment requires that a State afford due process to an affected person before depriving that person of important property or liberty interest. The defendants make no argument that they have afforded procedural due process to the plaintiffs. Instead, they argue that the plaintiffs have failed to allege the existence of any liberty or property interest which is entitled to the protections of due process.

A wide variety of property interests have been recognized as worthy of the safeguards of due process. For instance, public employment may not be denied without due process where a person has "a legitimate claim of entitlement" to such employment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). A State may not deprive a person of personal property without due process. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Further, government may not deprive a person of certain government benefits, once they have been accorded by law, without due process. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

Similarly, the Supreme Court has recognized an array of liberty interests which may not be abridged without due process. In some circumstances, a person's interest in his or her good name receives due process protection. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (...