Smith v. Rainey

• Decision Date: 30 September 2010
• Docket Number: Case No. 8:09–CV–1628–T–27MAP.
• Parties: Karina SMITH and Elija Moses, individually and on behalf of others similarly situated, Plaintiff,v.Jeff RAINEY, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

747 F.Supp.2d 1327

Karina SMITH and Elija Moses, individually and on behalf of others similarly situated, Plaintiff,

v.Jeff RAINEY, et al., Defendants.

Case No. 8:09–CV–1628–T–27MAP.

United States District Court, M.D. Florida,Tampa Division.

Sept. 30, 2010.

Karen A. Gievers, Gievers, PA, Tallahassee, FL, Roy D. Wasson, Annabel Castle Majewski, Wasson & Associates, Chartered, Miami, FL, for Plaintiff.Daniel Ari Shapiro, Scott A. Shelton, Cole, Scott & Kissane, PA, Julie S. Sneed, Edward Martin Waller, Jr., Fowler White Boggs, James J. Kennedy, III, Jon Taylor Gatto, Richard Oliver, Buchanan, Ingersoll & Rooney, PC, Tampa, FL, Andrea Nicolle Zdaniewski, Jeffrey Marc Goodis, Thompson, Goodis, Thompson, Groseclose & Richardson, PA, St. Petersburg, FL, for Defendants.

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT hare four motions to dismiss raising substantive and procedural objections to the Amended Complaint (Dkts. 45, 47, 48, 52). The 73 page Amended Complaint includes 20 counts, 228 paragraphs and 61 subparagraphs, and names nine defendants. It seeks injunctive relief against all defendants and purports to assert various state and federal statutory causes of action, common law tort claims, and breach of contract claims against the defendants, some individually and some collectively. For the reasons discussed, the motions to dismiss (Dkts. 45, 47, 48, 52) are GRANTED, with leave to amend.

Background

This action was filed in state court on behalf of “Karina Smith” and “Elijah Moses,” two dependent children in the legal custody of Defendant Department of Children and Families (“DCF”), and purportedly on behalf of a class of foster children in the custody of DCF whose parents' parental rights have been terminated and who have been physically placed with Defendant Hillsborough Kids, Inc. (“HKI”) pursuant to Chapter 39, Florida Statutes and Fla. Stat. §§ 401.1671 and 401.1675. (Dkt. 38 ¶ 29). The Amended Complaint seeks to address alleged systemic deficiencies in the foster care system in Hillsborough County and to recover damages for the named Plaintiffs.

Presumably because the children lacked legal capacity to sue under Florida law,¹ when suit was filed, Plaintiffs' counsel moved the Circuit Court to appoint Nancy G. Farage as guardian ad litem for this matter. (Dkt. 1–1 at 51–52).² Plaintiffs' counsel stated that Ms. Farage was the pro bono attorney appointed by the dependency court to serve as attorney ad litem for these children and was uniquely suited to serve as guardian ad litem by virtue of her familiarity with the Hillsborough County foster care system and with Plaintiffs.³ The state court granted the motion, albeit “without prejudice to any Defendant which desires to be heard on this issue from filing an appropriate motion and setting it for a hearing.” (Dkt. 1–1 at 49–50). No party contends that Ms. Farage is not authorized to maintain this lawsuit on behalf of Plaintiffs pursuant to Fed.R.Civ.P. 17(c)(2).

Plaintiffs sued (1) Hillsborough Kids, Inc., (“HKI”), the Florida corporation that operates the Florida foster care system in Hillsborough County pursuant to a contract with DCF, as well as its president and chief executive officer, Jeff Rainey, and its chief operating officer, Sunny Hall (together, the “HKI Defendants”) (Dkt. 38 ¶¶ 16–18); (2) the Agency for Health Care Administration (“AHCA”), which is the Florida state agency that administers the state Medicaid program, as well as its Secretary, Holly Benson, id. ¶¶ 19, 21–22 (together, the “AHCA Defendants”); (3) First Health, a private corporation responsible for determining whether Plaintiffs were eligible for certain physical and mental health services, id. ¶ 20 ⁴; and (4) DCF, the state agency that supervises the operation of the Florida foster care system, as well as its Secretary, George Sheldon, and its regional administrator for Hillsborough County, Nicholas Cox, id. ¶¶ 23–25.

On August 17, 2009, Defendants DCF, Sheldon, and Cox removed the case pursuant to 28 U.S.C. §§ 1441(b) and 1331.

Class Allegations

The Amended Complaint (Dkt. 38) includes the following allegations:

Each class member is a party to an ongoing dependency proceeding in state court. Id. ¶¶ 32, 38. Some class members have no guardian ad litem acting on their behalf in their dependency proceedings, even though appointment of a guardian ad litem is mandated by an unspecified law. Id. ¶ 33. Very few of the class members have an attorney ad litem representing them in their dependency proceedings. Id. ¶ 37.

Many class members (whom Plaintiffs' counsel chooses to describe as “captives,” id. ¶ 31) and “hostages,” id. ¶ 41(1), 42 have been in the foster care system for more than two years. Id. ¶ 41(b); see also id. ¶ 27(b). HKI frequently changes class members' “placements” and routinely allows far more than the two placement changes prescribed or targeted by an unspecified standard, thereby injuring the class members and increasing the likelihood of their suffering from “severe reactive attachment problems.” Id. ¶ 41(d)-(e).

Class members are not provided with “appropriate, mandatory, proactive, best practice, targeted, child-specific adoptive recruitment efforts.” Id. ¶¶ 41(f), see also id. 55. As a result, class members often remain in foster care longer than is permitted by (i) unspecified state law, see id. ¶ 50, and by (ii) an unspecified provision of the Adoption and Safe Families Act of 1997, see id. ¶ 51 (eighteen months). HKI has also breached its contractual duty to meet an annual “adoption goal,” missing the goal by about 5%. Id. ¶ 41(i).

Many class members are being administered dangerous psychotropic medications, primarily for purposes of behavioral control. Id. ¶¶ 34–35, 41(1). Many class members are administered these medications without the informed consent orders required by Section 39.407, Florida Statutes, or at least without orders entered after a full hearing and a physician's evaluation based on complete medical records. Id. ¶ 36. Indeed, HKI and DCF routinely permit the administration of these drugs without complying with the requirements of Section 39.407. Id. ¶ 41(m).

As a matter of policy, HKI declines to provide mentally disabled or unstable class members with an available but unspecified “targeted [adoptive parent] recruitment service.” Id. ¶ 41(g); see also id. ¶¶ 89, 91. Additionally, HKI and DCF do not attempt at all to find adoptive parents for certain class members whom they regard as “not stable” enough for adoption. Id. ¶ 41(j).

The HKI Defendants do not provide enough “therapeutic and other foster beds” in Hillsborough County to meet the needs of class members who need a “therapeutic placement in the community.” Id. ¶ 90. Instead, the HKI Defendants have adopted the practice of holding such children in locked psychiatric facilities in Hillsborough and other counties. Id. Moreover, claiming a shortage of good “therapeutic foster homes,” HKI routinely places mentally unstable class members in facilities or therapeutic group homes outside Hillsborough County. Id. ¶ 41(h); see also id. ¶ 92. As a matter of policy, HKI declines to provide these class members with otherwise available adoption services. Id. ¶ 41(h); see also id. ¶ 93.

The Amended Complaint contains the following allegations as to the named Plaintiffs. Both Plaintiffs have been diagnosed with unspecified “mental health disabilities and impairments” that qualify as disabilities under the ADA. (Dkt. 38 ¶¶ 14–15).

Allegations as to the named Plaintiffs

Plaintiff Karina Smith was born in 1994 and has been in foster care since January, 2004. Id. ¶ 60. For several years before 2004, Smith received services while under the supervision of DCF and HKI. Id. ¶ 62. Smith was available for adoption by some time in 2005. Id. ¶ 63. Smith has not received “proactive targeted child specific [adoptive parent] recruitment” for at least two years. Id. ¶ 75.

In 2005, Smith's health care providers determined that keeping her in a locked psychiatric placement and on psychotropic medications was harming her and recommended unspecified, less restrictive alternatives. Id. ¶¶ 65–66. On more than one occasion, Plaintiff's therapist recommended that she be placed in a “therapeutic foster home.” Id. ¶ 70.

Notwithstanding these recommendations, and contrary to unspecified federal law mandating the least restrictive placements and unspecified state and federal “EPSDT statutes,” “Defendants” have arranged for Smith to be held in locked psychiatric placements throughout her time in the foster care system. Id. ¶¶ 68–69. Additionally, “Defendants” have caused or permitted to be administered to Smith dangerous psychotropic medications (including medications that cannot or should not be prescribed to minors under any circumstances) without the authorization required by Section 39.407, and in violation of the due process clause of the Fourteenth Amendment. See id. ¶¶ 68, 70, 79.

Several months before the Amended Complaint was filed, the dependency court ordered that Smith be removed to a therapeutic foster home. Id. ¶ 137. However, Smith remains in a locked psychiatric hospital in Tequesta, Florida, “on unconsented to medications, deteriorating,” Id. ¶ 42; see also id. ¶ 69.

Plaintiff Elijah Moses was born in 1998 and has been in foster care “essentially ... since birth.” Id. ¶ 61. Moses was placed with an adoptive mother, who neglected and abused him for years. See id. ¶¶ 61, 76–77. DCF investigators removed Moses from the adoptive home in July, 2007, and his adoptive mother's parental rights were terminated in September, 2007. Id. ¶ 64. Moses was then placed in a locked psychiatric facility called Tampa Bay Academy. Id. ¶¶ 73, 78. There, Plaintiff was abused in an unspecified manner and administered dangerous psychotropic medications. Id. ¶ 78. Many of these medications were administered without the authorization required by Section 39.407, and in violation of the due process clause...