Kenny A. ex rel. Winn v. Perdue, No. CIV.A. 1:02-CV-1686-MHS.

• Citation: 356 F.Supp.2d 1353
• Decision Date: 08 February 2005
• Docket Number: No. CIV.A. 1:02-CV-1686-MHS.
• Parties: KENNY A., by his next friend Linda WINN, et al., Plaintiffs, v. Sonny PERDUE, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

356 F.Supp.2d 1353

KENNY A., by his next friend Linda WINN, et al., Plaintiffs, v. Sonny PERDUE, et al., Defendants.

No. CIV.A. 1:02-CV-1686-MHS.

United States District Court, N.D. Georgia, Atlanta Division.

February 8, 2005.

COPYRIGHT MATERIAL OMITTED

Jeffrey O. Bramlett, Corey Fleming Hirokawa, Bondurant Mixson & Elmore, Jane Garrett Okrasinski, Don C. Keenan, Keenan's Kids Law Center, Atlanta, GA, Ira P. Lustbader, PHV, Jeffrey K. Powell, PHV, Stacy F. Antonucci, PHV, Sarah Hechtman, PHV, Erik S. Pitchal, PHV, New York City, for Plaintiff.

John C. Jones, Kathleen Mary Pacious, Eddie Snelling, Jr., Thurbert E. Baker, Office of State Attorney General, Mark Howard Cohen, Troutman Sanders, Willie Jake Lovett, Jr., Rolesia Butler Dancy, Patricia A. Chandler, Overtis Hicks Brantley, Office of Fulton County Attorney, Atlanta, GA, Elizabeth B. Taylor, Winston A. Denmark, Vivica Mitchell Brown, Charles George Hicks, William J. Linkous, III, Office of Dekalb County Attorney, Jefferson James Davis, Davis & Davis, Decatur, GA, Sarah Hechtman, PHV, Children's Rights, Inc., New York City, for Defendant.

ORDER

SHOOB, Senior District Judge.

This action is before the Court on motions for summary judgment filed by defendants Fulton County and DeKalb County. For the following reasons, the Court denies both motions.

Background

This is a class action brought on behalf of foster children in Fulton and DeKalb Counties. In addition to plaintiffs' claims against the state agencies and state officials responsible for operating Georgia's foster care system, plaintiffs also assert a claim against Fulton County and DeKalb County (County Defendants) for their alleged failure to provide foster children with adequate and effective legal representation in deprivation¹ and termination-of-parental-rights (TPR) proceedings.

Specifically, plaintiffs allege that the inadequate number of child advocate attorney positions funded by County Defendants results in extremely high caseloads for the attorneys, making effective representation of the class of plaintiff foster children structurally impossible in all proceedings before the juvenile courts where deprivation is alleged. First Am. Compl. ¶¶ 99-103. In Count XIII of their First Amended Complaint, plaintiffs allege that this failure to provide adequate and effective legal representation violates plaintiffs' due process rights under the Georgia Constitution and, with respect to TPR proceedings, their statutory rights under O.C.G.A. § 15-11-98(a).² Id. ¶¶ 218-19. To correct these alleged deficiencies, plaintiffs pray for class-wide prospective injunctive and declaratory relief. Id. ¶¶ 185-89, 193(f); Prayer for Relief ¶¶ C(11) and D.

Deprivation cases consist of a series of hearings and review proceedings that take place over the course of a child's stay in the Georgia foster care system. These include (1) the initial 72-hour detention hearing, where the judge must determine whether there are reasonable grounds to believe that the child is deprived and whether the child should be returned to his or her parents or retained in the custody of the Division of Family and Children Services (DFCS) until the adjudicatory hearing occurs; (2) the adjudicatory hearing, where the juvenile court hears evidence and makes a determination on the merits of whether a child is deprived; (3) the dispositional hearing, where the juvenile court must determine what is to be done with the deprived child, including where and with whom the child is to be placed at that time; and (4) periodic review proceedings conducted either by the court or a citizen review panel. See O.C.G.A. §§ 15-11-39, 15-11-54 through 15-11-56, and 15-11-58(k). In addition, some deprivation cases also include TPR proceedings. See O.C.G.A. §§ 15-11-94 through 15-11-106.

In both Fulton and DeKalb Counties, child advocate attorneys are responsible for representing allegedly deprived children in all of these proceedings. Fulton County employs four child advocate attorneys, while DeKalb County employs five.³ As of March 2004, there were 1,757 plaintiff foster children in custody in Fulton County and 914 in DeKalb County. This equates to a caseload of 439.2 child clients per attorney in Fulton County, and 182.8 child clients per attorney in DeKalb County. The American Bar Association, the United States Department of Health and Human Services, and the National Association of Counsel for Children (NACC) have each established standards of practice for lawyers who represent children in abuse and neglect cases. In light of the minimum requirements for effective advocacy set forth in these standards, the NACC recommends that no child advocate attorney should maintain a caseload of over 100 individual child clients at a time.

Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is "no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court held that this burden could be met if the moving party demonstrates that there is "an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. 2548. At that point, the burden shifts to the non-moving party to go beyond the pleadings and present specific evidence giving rise to a triable issue. Id. at 324, 106 S.Ct. 2548.

The Court, however, must construe the evidence and all inferences drawn from the evidence in the light most favorable to the non-moving party. WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988). Moreover, because the summary judgment standard mirrors that required for a judgment as a matter of law, summary judgment is not appropriate unless "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted).

Discussion

I. Summary of the Parties' Contentions and the Court's Conclusions

Notwithstanding the large caseloads carried by child advocate attorneys, County Defendants contend that they are entitled to summary judgment on plaintiffs' claim that they fail to provide adequate and effective legal representation to plaintiff foster children. First, County Defendants argue that, although they voluntarily provide representation to children in all deprivation proceedings, Georgia law requires provision of counsel to children only in TPR proceedings, and that plaintiff foster children therefore have no right to effective legal representation in general deprivation proceedings. Second, County Defendants contend that plaintiffs are not entitled to injunctive relief because (1) they have failed to show any irreparable injury arising from the Counties' alleged failure to provide effective assistance of counsel, and (2) they have an adequate legal remedy for any ineffective assistance in the form of either State Bar disciplinary proceedings or private actions for damages against the child advocate attorneys. Third, County Defendants argue that declaratory relief is inappropriate because state law clearly affords plaintiff foster children a right to counsel only in TPR proceedings, so there is no uncertainty as to their legal rights. Finally, County Defendants argue that the appropriate level of funding for child advocate attorneys is a legislative function that should not be interfered with by the Court.

In response, plaintiffs argue that they have both a statutory and a constitutional right to counsel in all deprivation cases, not just TPR proceedings, and that this right includes the right to effective assistance of counsel. Plaintiffs also contend that they have satisfied the irreparable harm requirement for injunctive relief because there is sufficient evidence in the record to create a genuine issue of fact as to whether they are receiving, or face a substantial risk of receiving, ineffective assistance of counsel. Specifically, plaintiffs cite evidence that child advocate attorneys' caseloads in both Fulton and DeKalb Counties are substantially above the 100 individual clients at a time recommended by the NACC, and that these excessive caseloads prevent them from carrying out their basic professional responsibilities. Plaintiffs also cite testimonial and documentary evidence, including child advocate attorney files for the named plaintiffs, showing that child advocates are providing ineffective assistance of counsel. Plaintiffs also argue that, contrary to County Defendants' argument, the filing of a Bar complaint is not an adequate legal remedy because the Georgia Bar Association has no authority to award class-wide injunctive or declaratory relief aimed at structural reform. Moreover, plaintiffs argue, it is not the incompetence of individual attorneys that is the problem, but rather systemic problems in the Fulton and DeKalb systems, specifically underfunding and the resultant excessive caseloads. Finally, plaintiffs contend that they have established the need for declaratory relief in order to clarify whether they have the statutory and constitutional rights to effective assistance of counsel that they claim.

The Court concludes that plaintiff foster children have both a statutory and a constitutional right to counsel in all deprivation proceedings, including but not limited to TPR proceedings. The Court further concludes that plaintiffs have presented sufficient evidence to create a genuine issue for trial as to whether they are threatened with irreparable harm because they are receiving, or face a substantial risk of receiving, ineffective assistance of counsel in such proceedings. The Court rejects County Defendants' argument that plaintiffs have an adequate legal remedy in the form of State Bar complaints or lawsuits filed against individual child advocate attorneys because such actions cannot remedy the...