Sam M. by Elliott v. Carcieri, C.A. No. 07-241L.

• Decision Date: 29 April 2009
• Docket Number: C.A. No. 07-241L.
• Citation: 610 F.Supp.2d 171
• Parties: SAM and Tony M., BY Next Friend Gregory C. ELLIOTT; Caesar S., by Next Friend Kathleen J. Collins; David T., by Next Friend Mary Melvin; Briana, Alexis, Clare and Deanna H., by Next Friend Gregory C. Elliott; and Danny and Michael B., by Next Friend Gregory C. Elliott; for themselves and those similarly situated, Plaintiffs, v. Donald L. CARCIERI, in his official capacity as Governor of the State of Rhode Island; Jane Hayward, in her official capacity as Secretary of the Executive Office of Health & Human Services; and Patricia Martinez, in her official capacity as Director of the Department of Children, Youth and Families, Defendants.
• Court: U.S. District Court — District of Rhode Island

610 F.Supp.2d 171

SAM and Tony M., BY Next Friend Gregory C. ELLIOTT; Caesar S., by Next Friend Kathleen J. Collins; David T., by Next Friend Mary Melvin; Briana, Alexis, Clare and Deanna H., by Next Friend Gregory C. Elliott; and Danny and Michael B., by Next Friend Gregory C. Elliott; for themselves and those similarly situated, Plaintiffs, v. Donald L. CARCIERI, in his official capacity as Governor of the State of Rhode Island; Jane Hayward, in her official capacity as Secretary of the Executive Office of Health & Human Services; and Patricia Martinez, in her official capacity as Director of the Department of Children, Youth and Families, Defendants.

C.A. No. 07-241L.

United States District Court, D. Rhode Island.

April 29, 2009.

Jametta O. Alston, Office of the Child Advocate, Cranston, RI, John William Dineen, Providence, RI, Marcia Robinson Lowry, Susan Lambiase, Childrens' Rights, New York, NY, Vernon Winters, Weil, Gotshal, and Manges LLP, Redwood Shores, CA, for Plaintiffs.

Brenda D. Baum, James R. Lee, Attorney General's Office, Kevin J. Aucoin, Department of Children and Their Families, Legal Department, Providence, RI, Jane E. Morgan, Department of Mental Health, Retardation and Hospitals, Cranston, RI, for Defendants.

DECISION AND ORDER

RONALD R. LAGUEUX, Senior District Judge.

This matter is before the Court on Defendants' Motion to Dismiss Plaintiffs' Amended Complaint, based on Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiffs are ten minor children who are (or were) in the legal custody of the State of Rhode Island's child welfare agency, the Department of Children, Youth and Families (hereinafter "DCYF"). The named plaintiffs, suing by alleged "Next Friends," seek to be denominated as a class, pursuant to Rule 23 of the Federal Rules of Civil Procedure, in order to bring a class action lawsuit on behalf of all children who are or will be in DCYF custody as a result of a report of abuse or neglect. The number of children currently in DCYF custody is approximately 3,000.

The architect of this lawsuit is the State's Child Advocate, who purports to represent these minor plaintiffs and has solicited the Next Friends to serve as their representatives. The Child Advocate is a statutorily-created position, whose duties are enumerated at Rhode Island Gen. Laws § 42-73-7. Defendants in the suit are the Governor of the State of Rhode Island, the head of the Office of Health and Human Services, and the director of DCYF, all named in their official capacities.

Plaintiffs allege that the state's child welfare system is underfunded, understaffed and mismanaged. As a consequence, they allege that, while in DCYF custody, the minor Plaintiffs have been harmed and will continue to be harmed to such an extent that their constitutional and statutory rights are violated. Because the minor Plaintiffs are within the jurisdiction of the Family Court, where guardians have been appointed to represent their interests, the Child Advocate and the Next Friends who have brought this lawsuit have no authority or standing to proceed in this case. Therefore, for the reasons explained at greater length below, this case must be dismissed.

Causes of action

Plaintiffs' Complaint sets forth six causes of action. Count I alleges that, when Defendants take children into government custody because of abuse or neglect, they assume an affirmative duty to provide and care for the children and protect the children from further harm. Defendants' failure to exercise reasonable professional judgment in caring for children in their custody amounts to deliberate indifference and constitutes a deprivation of the children's substantive due process rights under the Fourteenth Amendment, such as, inter alia, the right to safe and secure foster placements and the right to adequate medical, educational and psychiatric services.

In Count II, Plaintiffs allege that Defendants' acts of removing them from their homes and placing them in foster facilities that Defendants know or should know pose an imminent risk of further harm to them amount to deliberate indifference to their substantive due process rights in violation of 42 U.S.C. § 1983. Likewise, when the children are subsequently returned to their homes, even when Defendants know, or should know, that the home environment is still not safe, the children are at continuing risk of harm in violation of their rights. Count III asserts that Defendants' policy and practice of deliberate indifference to Plaintiffs' welfare comprises a deprivation of the liberty interests, privacy interests and associational family relationship rights guaranteed by the First, Ninth and Fourteenth Amendments.

In the fourth cause of action, Plaintiffs allege that Defendants' actions constitute violations of the federal Adoption Assistance Act, 42 U.S.C. §§ 621-629i, 670-679b, and the regulations promulgated in connection with those sections, 45 C.F.R. §§ 1355-57. These statutory sections provide for federal financial support for child and family welfare services at the state level, in conjunction with federal oversight of those services. According to Plaintiffs, Defendants have failed to fulfill federal mandates, such as:

. . . the right to placement in foster homes or other settings that conform to reasonable professional standards and are subject to a uniformly applied set of standards; the right to have a petition to terminate parental rights filed, or have a compelling reason documented why such a petition has not been filed, in accordance with specified, statutory standards and time frames; the right of children whose permanency goal is adoption to planning and services to obtain permanent placement, including documentation of the steps taken to secure permanency; the right to services to facilitate the child's return to his family home or permanent placement of the child . . .

Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action, p. 78, ¶ 231.

In the fifth cause of action, Plaintiffs aver that the Defendants have deprived them of federal and state-created liberty and property rights in violation of procedural due process rights provided by the Constitution. The federal-law entitlements stem from the Adoption Assistance Act, as outlined in Count IV. The state-law entitlements are conferred by Rhode Island General Laws §§ 42-72 et seq., and §§ 42-72.9 et seq., and include, for example, the right to have DCYF "license, approve, monitor, and evaluate all residential and non-residential child care institutions, group homes, foster homes, and programs . . .;" R.I.G.L. § 42-72-5(b)(7), and the right for the child to have his or her "health and safety . . . be the paramount concern in making reasonable efforts toward reunification with the parent(s)." R.I.G.L. § 42-72-10(b).

In the sixth and final cause of action, Plaintiffs allege that Defendants have breached contracts made with the federal government, to which Plaintiffs are third-party beneficiaries. These contracts are State Plans prepared for and approved by the United States Department of Health and Human Services, pursuant to the Social Security Act. Under the terms of the State Plans, the State of Rhode Island agrees to provide child welfare services in compliance with federal regulations, in order to receive federal funds.

In their prayer for relief, Plaintiffs seek a declaration that Defendants' actions violate the constitutional rights of the class; a permanent injunction against further actions that violate the rights of the class; remedial relief to ensure Defendants' prospective compliance with their legal obligations to the class; and costs and expenses of the lawsuit.

The named Plaintiffs

The ten children named in this lawsuit are identified by pseudonyms only. They come from five families, and range in age from two to sixteen years old, as of this writing. Their stories are heart wrenching and compelling. As related in the Complaint, these children have been subjected to neglect, physical and sexual abuse, poverty and instability. They have been exposed to drug abuse, drug dealing, alcohol abuse, mental illness and domestic violence. Some come from families where these conditions have persisted over generations, with children with active DCYF files giving birth to babies who immediately are DCYF `cases.' Unfortunately DCYF custody seldom seems to have provided a safe haven for these children, who have frequently been placed in the homes of relatives, where they have fared little better than before. Moreover, their foster placements have been temporary, as the children are soon reunited with their parents, pursuant to DCYF policy, where they are sometimes abused or neglected again, only to be relocated at another, different foster facility. Culling from the detailed accounts provided by Plaintiffs (as appropriate in reviewing a motion to dismiss), as well as documents from the Rhode Island Family Court (of which this Court takes judicial notice), the Court will briefly summarize the case histories of the named Plaintiffs, including the most recent information provided to the Court.

Briana H., Alexis H., Clare H. and Deanna H.

Since this lawsuit was filed, Briana, Alexis and Clare were legally adopted on September 24, 2007, rendering their cases moot. Only Deanna, her mother's ninth child, born in October 2006, remains in DCYF custody. A so-called "cocaine baby," Deanna was taken into DCYF custody at birth, and placed with a foster family. DCYF filed a petition to terminate the parents' rights as to all four girls in January 2007, after years of abuse and neglect. These petitions were ultimately granted by the Family Court as to the older girls, resulting in their adoption. However, the Family Court dismissed the petition filed on behalf of Deanna on February 27, 2007. During the proceedings in Family Court, Deanna has been represented by a guardian ad litem, Attorney John O'Brien from ...