Tinsley v. McKay

• Decision Date: 29 September 2015
• Docket Number: No. CV-15-00185-PHX-ROS,CV-15-00185-PHX-ROS
• Citation: 156 F.Supp.3d 1024
• Parties: Margaret Tinsley, et al., Plaintiffs, v. Gregory McKay, et al., Defendants.
• Court: U.S. District Court — District of Arizona

156 F.Supp.3d 1024

Margaret Tinsley, et al., Plaintiffs,

v.Gregory McKay, et al., Defendants.

No. CV-15-00185-PHX-ROS

United States District Court, D. Arizona.

Signed September 29, 2015

Adriana Teresa Luciano, Julia Lucia Davis, Rachel Brodin Nili, William A. Kapell, Childrens Rights Incorporated, New York, NY, Joseph E. Mais, Shane R. Swindle, Perkins Coie LLP, Keith Beauchamp, Roopali H. Desai, Shelley Tolman, Coppersmith Brockelman PLC, Anne C. Ronan, Phoenix, AZ, Timothy Michael Hogan, Tucson, AZ, for Plaintiffs.

David Daniel Weinzweig, Gary N. Lento, Melanie Grace McBride, Robert Lawrence Ellman, Office of the Attorney General, Logan T. Johnston, Johnston Law Offices PLC, Catherine Dodd Plumb, Law Offices of Catherine Dodd Plumb PLC, Phoenix, AZ, Daniel Patrick Struck, Kathleen L. Wieneke, Nicholas Daniel Acedo, Tara Brooke Zoellner, Timothy James Bojanowski, Struck Wieneke & Love PLC, Chandler, AZ, for Defendants.

ORDER

Honorable Roslyn O. Silver, Senior United States District Judge

Plaintiffs, minors in the custody of the Arizona foster care system, allege widespread systemic failures in state child welfare agencies “expos[e] them to ... physical and emotional harm and unreasonable risk of harm” in violation of their constitutional rights. (Doc. 37 at 2). Defendants moved the Court abstain and dismiss the second amended complaint (the “complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(1)

and the Younger and O'Shea abstention doctrines. (Doc. 41).

BACKGROUND

According to the complaint, the number of children involved in foster care in Arizona has substantially increased since 2003. Consequently, as of September 30, 2014, 16,990 children were receiving out-of-home care through Arizona's foster care system. The complaint alleges the increases were precipitated by budget cuts affecting programs which provide in-home services to children and support services for families.

The complaint recounts in detail the experiences of the ten named Plaintiffs, children ranging from three to fourteen years of age in foster care custody. There are several common threads in their statements. All named Plaintiffs allegedly failed to receive necessary physical and/or mental healthcare, were separated from siblings who were also in the foster care system, and experienced frequent relocations and school transfers. Many allegedly suffered ill-prepared, neglectful, and abusive foster parents and inattentive caseworkers. As a result, Plaintiffs allegedly became suicidal, including a 9–year–old child, suffered physical and mental trauma, and experienced significant educational disruption.

Plaintiffs claim their experiences were caused by a number of “structural and operational failures [which] continue to plague the state's child welfare system.” (Doc. 37). These failures include: 1) a shortage of and inaccessibility to physical, mental, and behavioral health services; 2) widespread failure to conduct timely investigations of reports that children have been maltreated while in state foster care; 3) a shortage of family foster homes; and 4) widespread failure to engage in basic child welfare practices aimed at maintaining family relationships, such as placing siblings together, placing children with their biological parents on a trial reunification basis, coordinating visits between children in state foster care and their biological families, and having caseworkers make regular visits with the biological parents of children to monitor progress toward family reunification.

Defendants are the directors of three state agencies: Defendant Gregory McKay is Director of the Department of Child Safety (“DCS”), which is responsible for managing the state's child welfare system; Defendant Cara M. Christ is Director of the Department of Health Services (“DHS”), which provides mental and behavioral health services to children in the state foster care system; and Defendant Thomas J. Betlach is Director of the Arizona Health Care Cost Containment System (“AHCCCS”), which administers and supervises the state's Medicaid program. Plaintiffs maintain these individuals are responsible for administering the foster care system and they have been aware of but have failed to address the problems outlined in the complaint. Plaintiffs seek declaratory and injunctive relief for alleged violations of substantive due process rights under the Fourteenth Amendment;¹ rights under the Medicaid Act;² and the right to family integrity under the First, Ninth, and Fourteenth Amendments.³ The prayer for relief requests a permanent injunction barring Defendants from violating their rights, the establishment and implementation of policies and practices addressing each of the alleged violations, and appointment of a neutral expert to monitor progress and compliance.

Defendants move to dismiss the complaint because the Court allegedly lacks subject matter jurisdiction under Rule 12(b)(1)

, arguing the Younger and O'Shea abstention doctrines apply. Defendants maintain the foster children's ongoing dependency proceedings in the Arizona juvenile courts preclude the relief sought by Plaintiffs. However, Plaintiffs argue their claims rest solely on actions of the child welfare agencies and they are not challenging any aspect of any particular dependency proceeding. Preliminary background regarding Arizona juvenile courts and agencies is required.

I. Role of Juvenile Courts

In Arizona, “[a]ny interested party may file a petition to commence proceedings in the juvenile court alleging that a child is dependent.” A.R.S. § 8–841

. Typically, such a petition is filed by DCS after an investigation into the child's living conditions and removal of the child from the home. See A.R.S. §§ 8–222 ; 8–223. After a child is removed, the juvenile court holds a preliminary protective hearing to decide whether the child should remain in DCS's temporary custody pending a determination of dependency. A.R.S. § 8–824. The juvenile court then holds a dependency hearing to determine whether the child is in need of assistance or placement either because the child has no guardian responsible for care or the guardian is unable to provide the necessary care. See A.R.S. § 8–844. If the child is determined dependent, the juvenile court “may enter orders awarding a dependent child,” subject to the supervision of DCS, to the care of the parents or to another member of the child's family, or to an institution, association, agency (such as DCS), a school, an independent living program, or to a “reputable citizen of good moral character.” A.R.S. § 8–845(A). In deciding where to place the child, the juvenile court must consider the goals of the placement and appropriateness of the case plan. A.R.S. § 8–845(B). The juvenile court is required to seek to reunite families, where possible, and order a permanency plan that maximizes the child's contact with siblings, either through co-placement or frequent visitation, unless doing so would not be in the child's best interest. A.R.S. § 8–845(C).⁴ “[I]f the child has been removed from the home, the court shall order [DCS] to make reasonable efforts to provide services to the child and the child's parent.” A.R.S. § 8–846(A).

After the dependency hearing, the juvenile court reviews the child's case every six months. A.R.S. § 8–447(A). The periodic review hearings are an opportunity for the juvenile court to reassess the well-being of the child, monitor progress toward the child's goals, and determine if the child continues to be dependent. A.R.S. § 8–847(D)–(E)

(“At [the] periodic review hearing, the [juvenile] court shall consider the health and safety of the child as a paramount concern .... [and] shall determine[ ] [w]hether [DCS] has identified and assessed placement of the child with a relative or person who has a significant relationship with the child .... [and] [w]hether the [child's] guardian has complied with the court order ...”).

At each six-month review, the court also determines whether the child's guardian has complied with court orders and whether the child is still dependent. A.R.S. § 8-447(D), (E). And the court has the authority to “punish a person for contempt of court for wilfully [sic] violating, neglecting or refusing to obey or perform any lawful order of the juvenile court or for obstructing or interfering with the proceedings of the juvenile court or the enforcement of its orders.” A.R.S. § 8–247

. Within twelve months of removal of a child older than three years, the juvenile court must hold a permanency hearing to determine the “most appropriate plan” for the child's permanent guardianship. A.R.S. § 8–862.

The six-month reviews are based on progress reports prepared and submitted by DCS, which must include:

1. An assessment of the extent to which the division or agency is accomplishing the purpose of foster care for the child as described in the case plan.

2. An assessment of the appropriateness of the case plan.

3. The length of time the child has been in foster care.

4. The number of foster home placements the child has experienced while in foster care and the length of each placement.

A.R.S. § 8–516(E)

. At each six-month review, the juvenile court also receives findings and recommendations from a local foster care review board; and the court must address these findings and recommendations on the record.⁵ A.R.S. § 8–515.03.

II. Role of Child Welfare Agencies

DCS's “primary purpose ... is to protect children.” A.R.S. § 8–451(B)

. It is charged with placing children in safe living environments and coordinating with DHS, AHCCCS, and others to provide children with court-ordered healthcare and other services aimed at promoting the safety and well-being of all children. See A.R.S. §§ 8451(B)(2), (4); 8–457; 8–512.

If the juvenile court assigns custody of a removed child to DCS, the agency may subsequently place the child with a parent or relative, in a licensed foster home, therapeutic foster care, group home, or a residential treatment facility. A.R.S. §...